IN the preface to his Zur Kritik der politischen Ōkonomie, 1859, Marx gives a brief account of his studies in political economy and their development. He starts: “My specialism was the study of law, which I found to be even less relevant than the study of philosophy and history. It was in the year 1842/43 that as editor of the Rheinische Zeitung I was first faced with the problem of having to talk about so called material interests. The discussions in the Rheinische Landtag (The Diet of the Rhineland) on wood-stealing and the distribution of land-holdings, the official argument which Herr von Schaper, at that time President of the Rhine Province, began to conduct with the Rheinische Zeitung à propos of the situation of the peasants in the Moselle area, and lastly debates on free trade and the imposition of protective tariffs—these were what first occasioned my concern for, and study of, economic problems.”
The deliberations of the Rheinische Landtag regarding the theft of wood formed the subject of a lengthy article he serialized in the Rheinische Zeitung during October/November 1842. Characteristically enough, he mentions only this article as being the first step on the road of his economic and political studies, ignoring the two which preceded it. The first of them deals with the freedom of the press and sharply criticizes the reactionary Prussian censorship. “A censored press is always a bad thing, even if the fruits of it are good… a free press is always a good thing, even if its fruits are bad… A castrato is a poor sort of a man, even if he does have a good voice. Nature is good, even though it may produce abortions. The very essence of a free press is the characterful, rational, moral essence of freedom. The character of a censored press is the characterless non-essence of unfreedom, it is a civilized monster, a sweet-smelling abortion.” The article ends by arraigning the Rheinische Landtag for stifling the freedom of the press by its half-hearted attitude, wavering between “the deliberate obduracy of privilege and the natural impotence of a quasi-liberalism”.
The second article was banned by the censor; and the manuscript has been lost. It concerned what were known as the “ecclesiastical troubles” or “Cologne troubles” (i.e. riots), a protracted conflict between the Prussian government and the Catholic Church regarding the children of mixed marriages. It ended with the government capitulating. “Prussia has kissed the pope's slipper while the whole world looks on,” was Marx's comment, in a letter to Ruge. He characterizes the article as providing evidence that “the protagonists of the state have taken an ecclesiastical standpoint, the Church's champions a political one.”
Compared with these two articles, breathing as they do the spirit of a radical liberalism, the third one (which analyses the laws enacted against wood-stealing and the debates on this subject in the Rheinische Landtag) is indeed a turning-point. Since Marx himself described this crucial change as a first step on the road of his politico-economic studies and the article in question as the first occasion he had to concern himself with economic issues, it provides precious material evidence for getting at what Marx understood by “economic problems” and what his approach to political economy was. As we shall see, this article also contains, and sets within a very concrete context, the principal elements out of which he was to build his Critique of Hegel's Philosophy of Law in the next two years. Because of all this, we are justified in discussing the article in some detail.
In point of fact, it originally had a broader purpose, embracing, in addition to the legislation against wood-stealing, the question of the distribution of land-holdings. Marx was able to execute only half this plan; for shortly before publication he was appointed editor of the Rheinische Zeitung and so never had time to finish the article. This deprived it, in a sense, of its climactic element, which should have consisted of an extensive analysis of the whole background to the problem of wood-stealing. The truth is that it involved a profound and ruthless conflict between the law of custom, stemming from the Middle Ages, which stood for communal ownership of the land, and the rise of capitalism. On the one hand, the peasants' right to parcel out the land among themselves was being threatened; while, on the other hand, legal action on an enormous scale was being instituted against the “theft” (as it was called) of wood, something the people regarded as a centuries-old inalienable communal right. The Prussian government had drafted a number of laws about this and had laid them before the Rheinische Landtag. This body consisted exclusively of landowners; and the manner in which it employed its legislative powers to bolster the private interests of its members prompted Marx to take pen in hand.
He begins by noting the difference from the two earlier articles on the freedom of the press and the church troubles. The question of the distribution of land-holdings he calls “a life-size version of the real, earthly problem”; and the article in question is set auf ebener Erde, at ground level. These turns of phrase are, of course, an allusion to the fact that while the immediate problems may relate to the ownership of land, behind it all there lies an antithesis which in years to come Marx will present in the context of his Critique of Hegel's Philosophy of Law: namely, the contrast between a “critique of heaven” and a “critique of earth”. If his critical analysis of the politico-legal problem of the freedom of the press and that of the church-state relationship came within the former category, now at last he has manifestly reached the level of the “critique of earth”. From this we may infer that in the contrast between the two levels a great deal more is entailed than the mere opposition of the ideal and the material, or the antithesis between religion and law, theology and politics. For the two earlier articles are dealing in whole or in part with purely political issues. In contrast, it is clear from the way Marx handles what he calls this “down-to-earth” problem of the right to possession of land that the “critique of heaven” has an essential role to play in it.
This indissoluble link is apparent from the first pages, where Marx is commenting on the discussions in the Landtag as to precisely what is signified by the term “wood-stealing”. After some debate, the deputies were agreed that misappropriating dead wood, even just picking it up, comes under the heading of theft and deserves to be punished just as much as the misappropriation of living, green wood which has not yet been cut down. It was argued, in support of this, that all too often young trees were damaged with a chopper so that the wood would die and could later on be treated as dead wood. Marx observes that a more elegant, simpler way could scarcely be conceived of subordinating the rights of human beings to those of young trees. “On the one hand there is the necessary consequence of cutting off a whole lot of human beings, quite undisposed to crime, from the green tree of moral conduct and consigning them like so much dead wood to the hell of criminality, evil and wretchedness. On the other hand is the possibility that a few young trees will be maltreated. It need hardly be pointed out that the gods of wood carry the day, and down go the human sacrifices!”
This frontal attack, touching the very core of the whole juridical question, forms the introduction to an argument about the nature of property and ownership. There is a cardinal distinction between living wood and dead wood. To appropriate the former, one is obliged to separate it from its organic context by a violent encroachment. But in the case of dead wood there is no deprivation of proprietory rights involved, because that has already taken place. The person who gathers dead wood is simply executing a judgment pronounced by the nature of the property itself; after all, you simply own the tree, but the tree no longer itself possesses any branches. That is why wood-gathering is essentially different from wood-stealing. The law is not absolved from the universal obligation to tell the truth. Indeed, the law actually has a twofold obligation; for it makes universal and authentic pronouncements as to the true nature of things. The true nature of things, therefore, cannot be regulated by the law, but the law must be regulated by the true nature of things. Should the law insist on calling an action that is hardly an offence committed against the wood “wood-stealing”, then the law is lying, and the poor person is sacrificed to a legal fiction. As Montesquieu said, there are two sorts of corruption. One consists in the people disobeying the laws, the other in their being depraved by the laws. This latter ill is irremediable; for the remedy is itself contaminated.
This juridical untruth, Marx goes on to argue, has the further consequence of bringing the law as a whole into discredit. By misusing the category “theft” in this way, it makes real theft something admissible in the popular view. Indeed, the consequences are even more far-reaching; for the whole bottom is knocked from under the category “property” in this manner. If every infringement of property is to be equated without distinction and without more particular definition with theft, then is not all private property and ownership theft? Am I not perhaps through my private ownership of property depriving someone else of this property? May it not be that I am thereby infringing his right to ownership?
So Marx gets to the heart of the problem: namely, the question of what constitutes the title to property of those many people who own no property at all. He begins his argument with an attack on the scholarly and all-too-ready serviceability of those who pass for historians, who claim to have discovered the philosophers' stone, enabling them to convert every gross appropriation into the pure gold of justice and of law. In other words, the field of battle is the history of the law of property. Against the host of historians, who on historical grounds champion the rights of the property-owners, he enters the arena on behalf of the poor, politically and socially dispossessed masses. “In behalf of poverty we assert and lay claim to the law of custom, and that not as something merely local but as the law of custom proper to poverty in every land. We would go further and assert that the law of custom is naturally the law of these undermost, dispossessed and elementary masses and of them alone.”
Once again Marx imports an apparently foreign element into the area of juridical argument. The first time, it was his cry about people being offered in sacrifice to the gods of wood which appeared to go beyond the merely legal context. This time, it is his introduction of so apparently opaque and obscure a factor as the law of custom. Yet his whole line of argument hinges fundamentally on those two things, or pivots around them. The first lies in the plane of the “critique of heaven”, the second touches the “critique of earth”. Although on a different level and in opposite directions, the two pivots are continuous with each other; and the door which hinges on them both constitutes a single, coherent train of ideas. Both pivots are indispensable; if one is not there, the door comes off its hinges.
For this reason, we are going to take a closer look at the passage about the law of custom. Marx is very well aware that his importing this element threatens to reduce the system of jurisprudence to chaos and that his own weapons could be turned against him. Does he not himself leap to the defence of the truth and integrity of the judicial system and legislature? And so he hastens to explain that there is a very big difference between one law of custom and another law of custom. There is, after all, a customary law of privilege, of the privileged classes: their customs, so called, are usages in conflict with law and justice. Their “customs” date from the earliest period of man's history, when it was still a part of natural history. Actually, that was the bestial period of human history. The gods concealed themselves under the guise of animals and, just as in the animal kingdom, mankind was divided into a number of mutually hostile and divergent types. It is the period of basic inequality and serfdom. The period of serfdom requires laws of serfdom. Whilst the law of men is the very being of freedom, the animal law is the being of bondage, of unfreedom. Feudalism, in the broadest sense of the word, is the “animal kingdom” of the mind and spirit, the world of a divided and separated mankind, contrasted with the world of a humanity which qua humanity is distinguished from the animal kingdom, a humanity whose inequality is nothing other than the spectrum of colours presented by the rainbow of equality. Just as in the animal kingdom of nature the drones are put to death by the worker bees, conversely in the “animal kingdom” of the spirit, that is, feudalism, the workers are mortified by the drones.
The conclusion is obvious: when the privileged try to defeat justice as determined by the law and appeal to their customary rights, instead of any human content, they are insisting upon a law in animal or bestial guise, a form that is now reduced to the unreality of an animal mask.
We must linger for a moment over this last observation; for it enshrines a subtle historical dialectic. The distinction between the “animal form or aspect” and an “animal mask” is the distinction between the animal period of man's history, in which the gods disguised themselves as animals, that is, in real animal guises, and modern times, in which the spirit of that animal period still hovers around, although its reality and substance have disappeared. Anyone who today, in a secularized world, still tries to make use of the thought-forms of a bygone phase of human history is at best continuing to wear a mask. It is the distinction between real, living religion and ideology. The former must take its historic course and pass away; the latter can and must be “un-masked”.
Just as the period of feudalism, of the spirit's “animal kingdom”, belongs to the past, so too the chief laws of custom cannot persist; for what they import runs counter to the form of universal law. That is not to deny that what is a right of custom may become a general law of the land. A reasonable right of custom in the period of general laws is nothing other than the habitual practice of that right as embodied in the law; for a right does not cease to be a “custom” because it has assumed the status of law—it has only ceased to be simply and solely a customary right. The right itself no longer depends on whether the custom happens to be reasonable or not; but the custom is rendered reasonable because the right becomes law, because the custom has become “a custom of the state”.
Thus far Marx's argument accords closely with the thinking of the Enlightenment, based as that was on the universal validity of natural law. The privileged classes cannot lay claim to privileges that fail to accord with the universal rights of men. But his argument is a two-edged sword; and it is with the other edge that he delivers the decisive thrust. He had in fact launched his argument by postulating that the dispossessed masses have no other law at their disposal than the law or right of custom.
On closer examination we can see that the law of custom, even where grounded on reason, cannot be subsumed completely within the law of the land. There is an indivisible remainder; or to put it another way, the right of custom (or “common law”) as a distinct and separate area alongside the law as defined in statutes only accords with reason as a right existing alongside and outside the law, since the custom or usage is the anticipation of a statutory right. In the case of the privileged classes, there can be no question of any such anticipation, for they have got not only their reasonable rights recognized in law but even their unreasonable privileges which they have quite arbitrarily appropriated to themselves. If, therefore, these eminent rights of custom are in conflict with the notion of a reasonable right, the converse is true of the customary rights of poverty: they are rights in opposition to the customary practice of positive law. Their substance is not opposed to the form of the law but rather to their own formlessness. The form of the law is not in conflict with the substance of the customary rights of poverty, but their substance has simply not as yet got as far as assuming the form of statutory law.
For supporting evidence, Marx appeals to the history of the Old-Germanic legal system, the so-called leges barbarorum, laws which came into existence between the fifth and ninth centuries and, for the most part, are the customary laws of the various Germanic tribes, formulated and set down in writing. The description “laws of the barbarians” distinguishes this body of Germanic law from the leges Romanorum, which applied to the Roman population among the German tribes. It is not difficult to see that the enlightened legislation of modern times is decidedly partial in its use of this Germanic law of custom. Indeed, that law constitutes a principal source of the customary rights of the poor.
The most liberal legislation has confined itself, where civil law is concerned, to formulating the rights taken over from the past and to giving them a general validity. Where the legislature found no rights, none were conceded. It discontinued purely private usages, but in so doing overlooked an essential point. The fact is that whilst class injustice took the form of wilful and arbitrary appropriation, the rights of those who had no social standing at all amounted only to incidental concessions. The practice of liberal legislation was proper enough vis-à-vis those who enjoyed customary rights beyond the law, but it was quite improper when it came to those who had such rights “without the law”. If it changed arbitrarily acquired privileges, in so far as a reasonable element of justice was to be found in them, into legal entitlements, such legislation ought also to have changed the fortuitous concessions made to the dispossessed into obligatory concessions.
This line of argument becomes clearer if one considers the example provided by the monasteries. They are abolished, their assets are secularized; and it is right that this should happen. But people omitted to turn the incidental relief that the poor obtained in the monasteries into some other positive source of possession. Whilst the assets of the monasteries were turned over to private ownership and in one way or another the monasteries were compensated for this, no one took care to compensate the poor who lived off the monasteries. Instead, a new limitation was imposed on them; and they found themselves cut off from an ancient right. The same thing happened in every case where what had been privileges were made into (statutory) rights. Of course, this relief given to the poor was an ill circumstance in so far as one of their rights had been turned into a fortuitous concession; but the positive aspect was that they were enjoying some relief. Liberal legislation did put an end to a bad state of affairs; yet the positive side of it was not counterbalanced by transforming what had been a happy accident into an obligation, but by abstracting from the contingency.
The term “abstracting” (abstrahieren) has a central function in Marx's thinking. In the first set of lectures we saw it was of fundamental importance in the “critique of heaven”. It is doubly significant, therefore, that we now encounter the term again in the context of a “critique of earth” and, more specifically, of a “critique of law”. The significance of the term becomes even more telling when we consider that Marx has deliberately chosen as the subject of his critique in this passage the history of the secularization of the monasteries.
In our day, the term “secularization” is used so generally to describe the secularizing process which in modern culture has been occurring over the whole field of things religious and ecclesiastical that we tend to forget that the origin of the term is a material one, namely, the appropriation by the secular arm of church property. In the history of the term, the “critique of earth” precedes the “critique of heaven”. Marx takes us back to the origin of the term but at the same time provides the historical development with a critical commentary. What actually concerns him is not the material spoliation of the monasteries, the appropriation of their assets, but simply and solely the legal form given to this “secularization”. Here he puts his finger on an aspect of modern legal justice linked very closely with the principle of universality and obligation. To the extent that legislation has abolished privileges fortuitously and arbitrarily acquired, and has turned the reasonable law of custom into generally applicable positive law, it has indeed abstracted from the chance circumstance which in times past, in “the animal kingdom of the spirit”, had been elevated to the status of a legal right; but at the same time it enshrined universal rights in positive law. That is to say, the principle of universality, instead of remaining an abstraction, was concreted in positive, enforceable law. But this concretizing process was incomplete, was in fact very one-sided; for no steps were taken to procure legal rights, in the form of concretized, positive law, for those who had previously enjoyed no privileges at all. Men simply “abstracted” from the total deprivation or absence of rights which was the lot of the poor; and the sheer concrete nature of poverty was simply overlooked. Through this method of abstracting, secularization became a very one-sided affair—one-sided, that is, in the way the abstraction of universality and reasonable obligation was concretized in favour of those who enjoy the privilege of having property. The victims of the abstraction were the property-less people, the dispossessed, who in the feudal period had enjoyed very concrete, albeit arbitrary and fortuitous, concessions.
But Marx goes further than that. He shows that this remarkable omission in modern law-making is not a historical accident or a legislative defect but is fundamentally and indissolubly bound up with the very nature of abstract private law. The one-sided character of such liberal legislation was inevitable, because all the customary rights of the poor were based on the fact that a particular kind of property-ownership was indeterminate in character: it was neither expressly private nor expressly public. This mixture of private and public rights is something we encounter in all medieval institutions. The faculty which liberal legislation brought to bear on such ambiguous forms was that of good sense or judgment. Now this is not only one-sided—this faculty of judgment or intelligence—it is its essential function actually to make the world a thoroughly one-sided business—a great and admirable enterprise; for it is this one-sidedness that alone can give form to the particular and distinct, wresting it, as it were, out of the inorganic slime of the (undifferentiated) whole. The character of things per se is a product of “judgment” or understanding. Each thing must isolate itself and be isolated, in order to be something. Whilst the understanding channels every part of the world's content in an enduring exactness and, as it were, solidifies the fluid essence of things, it brings out the multi-tudinousness of the world; for the world would not be many-sided, were it not for its many one-sidednesses.
The term “judgment”, which Marx introduces here, has to be interpreted in the context of the contrast that has been treated as self-evident in German idealist philosophy since Kant: the contrast between Verstand and Vernunft, between judgment and reason. That is likewise clear from the account Marx gives of the typical function of our “judgment”. The German language offers a peculiar difficulty here, in that there is no adjective from the noun Verstand that adequately represents the contrast with Vernunft. The adjective verständlich means “intelligible” and does not express what relates to judgment as opposed to reason. In the preceding argument Marx makes repeated use of the term vernünftiges Recht, whereas it now appears from his argument that what he really means is “that which evinces understanding”, at any rate in those instances where he has liberal legislation in view. There is an ambiguity, however, in his use of the term vernünftiges Recht, in so far as the essential grounds of his argument do indeed require this to refer to the Vernunft that transcends Verstand. The truth is that on this concept depends his central thesis that customary rights as a distinct area next the rights that are determined in law are alone “reasonable”, “grounded in reason”, vernünftig, where the rights in question exist beside and outside the statutory law, and where the custom is the anticipation of a legal right. That is the customary right of poverty, the only right to which those who have no rights can appeal. Poverty must appeal to a law of custom; and at the same time it anticipates an as yet nonexistent law which cannot be comprehended by the enlightened, liberal Verstand and by the legislation that is a product of it.
We might at this juncture be inclined to draw the conclusion: the law of the poor is the law of Vernunft, of reason. Marx's line of argument must surely seem to lead to that conclusion. So it is the more significant that Marx does not in fact formulate this logical conclusion. We simply do not find the term Vernunft included anywhere in his argument; and the omission is certainly not accidental; on the contrary, it is of a piece with the peculiar structure of his critique. Precisely where we would expect the apotheosis of his argument in an appeal to Vernunft, we find the very last term we would have looked for, “instinct”. Instead of ascending above judgment and understanding to the sphere of Vernunft, of Reason, in the manner of idealist philosophy, he appears to drop down to the bottom rung, where the human realm still touches that of the animals, that is, to the faculty of instinct.
But we want to follow in the wake of his argument, not to anticipate it. The faculty of understanding has performed a major and essential task by terminating the ambiguous and indeterminate formations of ownership, especially through its application of the categories of abstract private law, the pattern of which it was able to take over ready-made from Roman law. This legislative “know-how” saw itself as entitled to do away with the obligations towards the poorer class of people that went along with this indeterminate form of ownership, all the more justly where such ownership was also relieved of its political privileges. However, in doing all this the legislators overlooked a cardinal point: they forgot that even from the standpoint purely of private law, what was involved here was a two-sided affair: the rights under private law of the owner and the parallel rights of the non-owner. Furthermore, one has to remember that nowhere has legislation annulled the privileges of property-owning in constitutional law, but has merely stripped them of their hit-or-miss character and made them officially respectable. When, however, the faculty of judgment quite rightly enforced its principle of unity against the duplicity and incongruity of medieval law, it missed the fact that there are objects of ownership which in the nature of things can never acquire the character of having been marked out for private ownership. They are those objects that, by virtue of their elementary nature and their contingent existence, come under the heading of the right to occupation, that is, the right of the class which is excluded from all other ownership by that very same occupation-right and has the same position in civil society as those objects have in nature.
Thus there turns out to be a remarkable harmonia prestabilita, a pre-established harmony, between a category of objects which by their very nature fall outside every definition of private property and a category of subjects which, because of the nature of civil society, falls outside every form of private law. The faculty by which those subjects grasp the pre-established harmony is instinct. We shall now pursue Marx's argument further still in the ensuing passage.
It will be noted that the customs, which are those of the impoverished class as a whole, manage with infallible instinct to grasp ownership in its unresolved aspect; it will not just be noted that this class feels an urge to satisfy a natural need, but equally that it feels the need to satisfy an urge to justice, an instinct for justice. The dead wood may serve as an example here. It has no more organic relation to the living tree than the shed skin has to the snake. In the dry twigs and branches that have been snapped off and detached from organic life, in contrast to the sap-filled trunks and trees which organically assimilate air, light, water and soil to their own distinctive form and individual life, nature portrays, as it were, the contrast between poverty and riches. Human poverty senses this kinship and from this sense of affinity infers its right to possession; seeing the physical-cum-organic wealth marked out for the proprietor, it cites physical poverty as constituting the necessity and the accident of circumstance pertaining to it. In this random activity on the part of elementary forces, it descries a not unfriendly power, more humane than that of man himself. Instead of the fortuitous caprice of privilege there comes the chance play of the elements that snatch away from private ownership what it will no longer cede of its own accord. Just as the alms tossed on to the pavement are not destined for the rich, neither are these charitable gifts of nature. But even in her activity, poverty finds a kind of justice. In the very process of gathering, the elementary class of human society chooses a regulative position vis-à-vis the elementary power of nature. The same is true of the products which, growing wild, are a purely accidental and marginal aspect of property, and because of their very triviality do not form an object of activity on the part of the real owner. It is just the same with gleaning during harvest, and customary rights of that sort.
Thus, in these customs of the poor is reflected an instinctive sense of justice. Their roots are positive and legitimate; and the form assumed by the customary right accords that much the more closely with nature here, because the very existence of an impoverished class is to this extent simply a “custom” or usage of civil society, a custom which within the orbit of considered, political organization has not so far found an adequate place.
With this conclusion the circle of Marx's argumentation, which began with an appeal to the law of custom, is completed. I have made a point of presenting the argument as literally as possible; but the German text contains an amount of subtle word-play that is in danger of being lost in translation. Moreover, the argument itself is of such fundamental importance to the structure and method of Marx's critique of law that it is well worth while recapitulating its main elements.
In the first place, we should take note of his distinctive use of the concept of “nature”. It is not difficult to show from other writings of the young Marx as well that he bases himself on the theory of natural law or natural right that had filtered through from the legal and political thinking of the philosophy of the Enlightenment. I shall come back to this later on in a different connection. For the moment we are concerned simply with the interpretation of natural law in the context of the argument we have just been following. We have already encountered the expression “rightful nature of things”: “The rightful nature of things cannot be assimilated to the law, but the law must adjust itself to the rightful nature of things.” The law must speak truth, because the law is “the universal and authentic spokesman on the rightful nature of things”. In point of fact, the term “rightful nature of things” is the literal converse and correlate of the concept “natural right” or “natural law”. Just as there is a lex naturalis, so too is there a natura legitima. Nature itself figures human law; and for that very reason human law can and must reflect nature. Man and nature are attuned to each other and marked out for each other. To the naturalism of natural law there corresponds the humanism of the “rightful nature of things”.
Although both these—natural law and the “rightful nature of things”—are natural and self-evidencing, that does not in the least imply that they are immediately apparent or lie ready to hand. On the contrary, it takes some hard work to allow expression to what is “in the nature of things” and to catch the voice of nature and human nature. This exacting task also goes on as a historical process throughout the course of man's history. When we look more closely, we find the idea of “nature” present in Marx's argument at three different levels which are likewise historical phases.
The lowest level is that of “natural history” (Naturgeschichte). On this level the history of mankind was unfolding during that long run of centuries when human society was no more than a “spiritually and mentally animal kingdom” (geistiges Tierreich).
The second, more elevated and qualitatively different level is that of “reasoned justice” (vernünftiges Recht), a level first attained in human history with the period of civil society and the philosophy of the Enlightenment. Modern, positive law is a product of “legislative judgment” (gesetzgebende Verstand), but not simply that: the character of things is itself a product of judgment, of intelligence (der Charakter der Dinge ist ein Produkt des Verstandes). The word “character” here has a pregnant meaning that contrasts directly with the term “nature”. The understanding, the intelligence, sets its stamp on reality, it gives reality “character”; and only then does reality become comprehensible, graspable, manageable. It is only through the activity of the intelligence that any such thing as a distinct multiplicity of “things” comes to exist. Everything must isolate itself and be isolated in order to be something (jedes Ding muss sich isolieren und isoliert werden, um etwas zu sein). Things “are something or other”, they have Dasein, existence, that-ness, only through being distinguished, separated from the whole, through being set apart. We are reminded of Spinoza's words, omnis determinato est negatio, every determination is also a denial. Man's understanding, his intelligence, creates out of the primeval chaos of undifferentiated totality by segregating “things”. As it creates, it separates. What we have here, in fact, is the idea of Verdinglichung or “reification”, which in the writings of subsequent years was to play such a major role in the thinking of the young Marx.
However, the inevitable one-sidedness of the activity of the intelligence, entailing as it does an invaluable gain, is at the same time a loss. Not so much because the separating and distinguishing intelligence cannot possibly grasp the whole but because there are “things” on which that intelligence cannot leave any kind of impress: things which differ qualitatively from the “character” of the things defined by the intelligence. Nonetheless, they are most certainly “things”, in the sense of real, palpable and perceptible objects, equally as real as the “things” registered by the intelligence. Note that Marx is not alluding here to any mystical realities that are somehow beyond the reach of the intellective faculty. He is not intent on ascending from earth to loftier spheres, but is concerned with material, earthly things. Their qualitative difference from the things perceived by the reasoning intelligence does not he, therefore, in one or another mystical attribute; but this distinction is a necessary consequence of the intellective faculty's own activity. Whilst man's intelligence creates “things”, at the same time, and involuntarily, it gives rise to their opposites. Every determination is at the same time a denial. At the very moment when the intelligence distinguishes a thing, it sets a boundary. And boundaries have the peculiar property of fencing off and separating an “inside” from an “outside”. Along with the definition of what it “is”, the “thing” is furnished with a determination of what it is not. This is implied, actually, in the term “private law”; for the Latin verb privare means “to deprive” or “to dispossess”, whilst the technical expression for the negative prefix “a-” in words like “a-moral” and “a-theist” is alpha privans. Private law, which defines, demarcates, fences off and gives the force of law to private ownership and property, isolates a private territory from the publicly accessible area, strips away the public and communal character of this particular, segregated terrain. Thus all private law is really a privilegium, a privilege. This had already prompted Marx, when faced with a totally undiscriminating approach to the appropriation of any kind of wood in whatever form, to raise the question whether, on the contrary, all private ownership is not in fact theft, because the owner is thereby depriving everyone else of their rights to ownership. During the years that followed, in his critical examination of Proudhon, Marx was to probe yet further into this question.
He turns now to deal with the assertion that all private rights constitute a two-edged sword and have a dual character. Besides the private rights of the owner, there are private rights of the non-owner. That looks like a contradiction in terms, in so far as private rights in law are generally interpreted as being exclusively rights of the owner. Indeed, liberal legislation has not so much abolished the constitutional privileges of the Middle Ages as impressed upon them a bourgeois character, that is, transformed them into privilegium in the modern, individualistic sense of modern private law. Certainly that is how the one-sided intellective faculty is bound to envisage it. But, precisely because of its essential one-sidedness, that faculty is blind to the other side of the case. It fails to perceive that there are objects of ownership which by their very nature can never acquire the character of property intended for private ownership (doss es Gegenstände des Eigentums gibt, die ihrer Natur nach nie den Charakter des vorherbestimmten Privateigentums erlangen können).
Here we find the concept “nature” used in direct contrast to the concept “character”. The intelligence can only comprehend the “character” which it has itself impressed on reality; but it is in no position to recognize the dual nature of its own activity. If the private law of civil society is the positive application of natural law, then the intelligence is blind to the inevitably negative implications of its positive operation. The two-sidedness of natural law contains a paradox, which is bound per se to remain hidden and obscured from the intelligence. Nature stands over against nature. Over against the nature that has become “thing”, that has acquired a “character”, there stands another nature, as it were, the back side or reverse side of nature. Just as we cannot get a back view of ourselves, nor for that matter observe things simultaneously at front and back, so it is impossible for us to see both sides of nature at one and the same time. In order to do so, we have, as it were, to turn nature on its back, see it in reverse.
This puts us on to the third rung of a three-tiered concept of nature that passes through its first phase in the natural history of the “animal kingdom of the spirit” and through its second in a natural law on which the intelligence has set the impress of civil, private law. This third phase presents us with the really distinctive thing, consisting really in a double negation. First, the faculty of intelligence itself negates the natural history of the animal kingdom of the spirit. Now the intelligence is negated in its turn or, better, the involuntary and unconscious negation implied in the activity of the intelligence is offset and converted into a positive factor. It is particularly difficult, however, for the positive element to find expression, since language has already taken its “character” from the intelligence. Therefore we have either to content ourselves with a double negation or we fall back on the terminology which really belongs with the first phase, the phase of natural history and the animal kingdom of the spirit.
This makes intelligible the terms to which Marx has recourse in order to give a positive content to the specific “nature” of the objects of ownership which by definition fall outside the area of private property. These objects have an “elementary being” and an “accidental existence”, and for that very reason come under another kind of rights, the “rights of occupation” (die durch ihr elementarisches Wesen und ihr zufälliges Dasein dem Okkupationsrecht anheimfallen).
The term “right of occupation” comprises the fundamental contradiction of modern private law. The fact is that a right of occupation is a contradiction in terms. Occupation is arbitrary appropriation, assuming possession of. In principle it is a capricious act which belongs to the category of irresistible power—exerted by a blind fatality. Where occupation becomes a (legal) right, there prevails the maxim that “might is right”, there prevails the law of the “animal kingdom of the spirit”: “animal” in that might has the force of law; “of the spirit” in that might is elevated to the status of right.
Yet this term is a coin with two faces; and it is the reverse side that brings to light the full range of problems inherent in the obverse. When might comes to be right, in consequence there is a right accruing to powerlessness. The private rights of the owner entail the private rights of the non-owner. It is an inverted right of occupation, namely, the right of the class excluded by the right of occupation from all other ownership (also dem Okkupationsrecht der Klasse anheimfallen, welche eben durch das Okkupationsrecht von allem andern Eigentum ausgeschlossen ist).
Does not introducing the “right of occupation” in fact knock the bottom out of justice as such? If summa ius, the highest justice, is simply summa iniuria, the culmination of injustice, is there then any law in human society other than the law of the jungle? No; this conclusion conflicts with the specific character of Marx's dialectical mode of thinking and misses the whole point of it. For in the first place it is precisely the activity of the intelligence, whereby reality gets its character qua “things” impressed upon it, that Marx is here recognizing to be totally necessary. The intellective faculty has a necessary creative function in the humanizing of reality, whether it be that of nature or of human society. In that sense the second rung of the concept of “nature”, that of reasoned justice, is really a phase of natural law, in the twofold meaning of “nature” and of “law”.
No; Marx does not nullify the rights of reasoning intelligence, judgment (Verstand) and the law based on judgment; he simply exposes the unavoidable and essential one-sidedness of intellective activity and of reasoned justice. It is that basic one-sidedness through which alone the intelligence is able to be creatively operative that sets a definitive boundary to it. The intelligence cannot accomplish everything. It can, of course, cast its net over the whole of reality, but there are holes in the net. Reality is essentially a more comprehensive affair than the intelligence can ever grasp, describe or perceive. There will only be an adequatio rei et intellectus if we understand by res the “thing” with the stamp of the intelligence upon it, and if we reduce intellectus to “intelligence”, “understanding”, “judgment”. There is, however, an aspect of reality which eludes that understanding. Marx does not try to make out his case for this in the “heavenly” plane—he does not need to resort to mystical and religious arguments—but he observes simply and exactly what actually happens in nature. If the law of the jungle does prevail in nature, that is by no means the end of it. There is an aspect of the jungle which so far from falling below the level of reasoned justice goes above and beyond it. Thus we encounter the jungle, not only on the first rung of the nature-concept, but also on the third, the highest rung. In the goings-on of the elementary forces there is a friendly power, more humane than man is himself (in diesem Treiben der elementarischen Mächte eine befreundete Macht, die humaner ist als die menschliche). Evidently, not all power is inhumane. There is in nature a power at work which reasoned justice, in its one-sided effort to humanize nature and society, passes over. The dead and fallen wood is a case in point. The storm rips it from the tree with which it had an organic connection. The play of natural forces brings about a remarkable sifting process. Whilst the living tree comes under the private rights, or right of occupation, of the owner, the torn-off, dead branches accrue to the private rights, or right of occupation, of the non-owner. In that sense the right to these dry sticks is wholly a part of natural law, it simply answers to the provisions of nature, which has provided this wood especially for gathering. Indeed, the humanity of the forces of nature is even such that it, as it were, corrects the inhumane consequences of a humanizing, reasoned justice. The “chance play of the elements” steps in on behalf of the dispossessed, where the “arbitrary will of the privileged” seeks to withhold from them an elementary right, a natural right (An die Stelle der zufälligen Willkür der Privilegierten ist der Zufall der Elemente getreten, die von dem Privateigentum abreissen, was es nicht mehr von sich ablässt).
How, amid all the capriciousness of the jungle, do we set about detecting this humanity on nature's part? Can man develop a special organ for this purpose, a sixth sense? Have we here, at the third stage of the concept of nature, at last arrived at the corresponding third stage of humanity, at which man ascends beyond the intellective level and rises into the sphere of the Idea? Do we see here at last what is signified by the feeling for religion; does man possess a latent organ for “higher” things, a special mystical sense? Are we now penetrating to the hidden core of the religious a priori?
No; nothing of all that. There is no organ whatever, which man might be thought to possess, that would enable him to perceive this humane aspect of nature. What does exist, on the other hand, is a special category of people, the class of those without property. What also exists is a particular correspondence between this special category of people and a special category of objects. The correspondence consists in the fact that this special class of people occupies in civil society the same position as this special category of objects does in nature (welche in der bürgerlichen Gesellschaft dieselbe Stellung einnimmt wie jene Gegenstände in der Natur).
By analogy with the proposition of an adequatio rei et intellectus one might express Marx's proposition as an adequatio naturae et paupertatis, a correspondence between nature and poverty. Of course, he does mention a special faculty which in man is designed to register this correspondence with nature, namely, instinct. Yet this instinct is not a universal human faculty, as the intelligence would claim to be; it is not a human “capacity” which is inherent in man and which he can “possess”, nor a sixth sense alongside the other senses. We must pay close attention to the particular expressions Marx chooses to employ when defining this instinct. In the first place, he does not say that human beings possess this instinct; but he talks about the customs of the impoverished class, which are able to fasten with infallible instinct upon the unresolved aspect of property and ownership (dass die Gewohnheiten, welche Gewohnheiten der ganzen armen Klasse sind, mit sicheren Instinkt das Eigentum an seiner unentschiedenen Seite zu fassen wissen). In the second place, when he comes to speak about people themselves, he envisages this instinct not as a faculty or attribute that one has, but precisely as the reflection of a non-proprietor, of a non-possessor, of a lack, a deficiency. We “have” this instinct in the way that we “have” a deficiency.
Marx's use of language points straight to this remarkable adequatio naturae et paupertatis. The term Trieb, which might quite simply be translated as “urge” or “instinct”, in his terminology has a radically different function from that of indicating merely an animal instinct, such as the predatory instinct or sexual impulse. In its specific meaning the term Trieb may be described under three aspects. The first is that of Bedürfnis, of want—but in the elementary sense of poverty, that is to say, of that lack of everything, which is altogether a situation of want. That is radically different from an instinct that one tries to satisfy in perfection of an already favourable and assured position. The second aspect makes the radical difference from an animal instinct even clearer; this need is an “urge to justice”. That is something specifically human. The predatory instinct and sexual impulse man shares with the animals; but the “urge to justice” is typically human. The situation with the class of poor people is not only dass diese Klasse den Trieb fühlt, ein natürliches Bedürfnis, sondern ebensosehr, dass sie das Bedürfnis fühlt, einen rechtlichen Trieb zu befriedigen. The term “urge to justice” seems to present the same sort of contradiction as the term “right of occupation”; indeed the two notions correspond to each other.
To the third aspect to the term “urge” or “instinct”, only the German language can do full justice. Dead wood is a product of the Treiben (drive, motion) of elementary forces. The fortuitous and arbitrary play which natural forces “carry on” with the wood carries the dead wood into the arms of the non-owning class, the dispossessed. Through this they receive their elementary right, which is “carried” to them, as it were, along with the dead wood. Now with this Treiben (drive or motion) of natural forces there corresponds the urge to justice (rechtliche Trieb) naturally felt by the poor as a class.
We are completely in the grip of accident and caprice here. The impoverished class, which has become the victim of the “chance” wilfulness of the privileged and of the bourgeois private law they have produced, encounters in the accident and caprice of natural forces a fundamentally humane power with a corrective function. It is an “elementary” power, that is, the power of the elements; and it is the “elementary” class, the class of the poor, that corresponds to this elementary natural order. Just as the private rights of those with property correspond to a physical abundance, the living tree, so do the private rights of the property-less correspond to the dead wood, to physical deprivation. And just as the poor class feel this elementary correspondence as an urge to justice, so too is its practice of a specific kind, in so far as it creates a specific order. The gathering of dead wood is the work of the elementary class in human society, whereby it adopts a regulative position towards what is produced by the elementary power of nature. It is a gathering together (Sammeln) of what nature has scattered here, there and everywhere. And what is true of dead wood applies also to everything that grows wild and is therefore a “fortuitous accidence of property” (ein ganz zufälliges Akzidenz des Besitzes). With gleaning during harvest, the position is the same.
It is the epitome of insignificance, a negligible remainder, a postlude following the symphony of civil society, of private law, of wealth, of organic nature, when that symphony is already completed. But let us make no mistake! In this accidental play of caprice and accident a law is being created; this passive class of human society is creating an order. Beneath the palimpsest of the law based upon reasoned judgment, another text, as yet illegible but nonetheless in writing recognizably human, emerges, which with the greatest effort Marx is bent upon deciphering, word for word. It is the text of a natural law other than that laid down in civil law, the natural law of the third stage. For the time being this new natural law still lies concealed in an old-German law of custom which had appeared to be exploded definitively by the leges Romanorum and in particular by the modern civil law, based on Roman law. This new natural law is at present still only to be detected in the instinctive sense of justice of the impoverished class. For the time being this new law is still unformed, it has as yet received no “character” of its own, it is still purely a law of custom, just as up to this point the existence of the poor as a class is no more than a custom of civil society, having so far found no adequate place in the framework of the conscious organization of the state. Thus the form of the customary law is for the time being fully in accord with the nature of this new law (die Form des Gewohnheitsrecht is hier um so naturgemässer, als das Dasein der armen Klasse selbst bisher eine blosse Gewohnheit der bürgerlichen Gesellschaft ist, die in dem Kreis der bewussten Staatsgliederung noch keine angemessene Stelle gefunden hat).
So the customary law of the poor anticipates a new form of society and of political organization. It is the existence of the poor class as pure fact—a fact which no form of civil law whatever can annul, though it may seek to ignore it—which lays the dynamite under modern private law and is the seed of a new social order. The building has still to rise and the contours are as yet shown only in outline; but the corner-stone is already laid.
Yet it is not Marx's concern in this article to appear as the architect of a coming society. As journalist and observer, he is purely and simply the critic. Nor is he concerned with civil private law as such, not even in the first instance with legislation; for as he hastens to say in the introduction, he just is not familiar with the full text of the proposed law against wood-stealing, he knows it only from the debates on the proposals in the Rheinische Landtag. The complete text was known only to the deputies. The core of his criticism, therefore, is political, not juridical. In other words, in his critique of civil private law, he is getting at the structure of civil society and of the constitutional system and law that go with it.
In the subsequent pages the article shows, through a razor-keen analysis of the debates held in the Landtag, that, as representatives of the dignity of the official constitutional law, the deputies let the matter go completely by default and lowered themselves to become busybodies intent on furthering the interests of private ownership. What he envisaged those interests to be he makes clear from an example. To an urban delegate's defence of the customary right of the poor to pick fruit growing wild, like bilberries and bearberries, another deputy replied that in his neighbourhood these fruits were already commercial articles and were exported in bulging crates to Holland. Marx's commentary fastens on to this, and he notes that things have gone so far that the customary right of the poor has been made a monopoly of the rich. Evidence is offered that it is possible to monopolize a communal possession; and so the logical conclusion is that it must be monopolized. The nature of the object calls for the monopoly, because the interest of private ownership has invented it. (Die Natur des Gegenstandes verlangt das Monopol, weil das Interests des Privateigentums es erfunden hat). The modern whim of a number of commercial dealers bent on financial gain becomes irrefutable, directly it supplies residue for the early-Teutonic concern with land and soil (Der moderne Einfall einiger geldfuchsender Handelskrämer wird unwiderleglich, sobald er Abfälle dem urteutonischen Interesse von Grund und Boden liefert). The target of Marx's criticism is not so much the rising tide of capitalism in Germany as the manner in which an economic development quite literally prescribes the law to the state and the force of law is given to naked violence.
This is a glaring example of a development which also underlies the legislation against wood-stealing. The early-Teutonic Interesse of the landholders is quickly transformed into the modern Interesse of the capitalist. The term Interesse, which we encounter here for the first time, is to develop in Marx's thinking into one of the central categories of his ideological critique. We find the material for its construction already present in this article. The “interest” of private ownership is the true counterpart of the “urge to justice” of the impoverished class. The puny, wooden, mindless and self-seeking soul of “interest” sees only a single point, that is, the point at which it is injured, just as a chicken will fly into the passer-by who happens to get in its way. The “chicken eyes” of interest turn the least misdemeanour into a capital crime. Moreover, private interest is pusillanimous, because its heart, its soul, is an external object that can always be stolen and damaged; and who does not quail before the danger of losing heart and soul? No wonder that a state which becomes the servant of private interest proves an inhumane source of legislation; for its highest nature is an alien and material one.
The real force of Marx's argument is that, faced with the inhumanity of private interest, he recalls the state to its imperishable duty to protect humanity. Private interest makes the one sphere in which a person's dealings are antagonistic the sphere within which that person conducts his life. It turns the law into a rat-catcher who sets out to exterminate vermin; for private interest does not study nature and therefore sees rats as no more than verminous. The state, however, must see more in the wood-stealer than the “forest enemy”. Is the citizen not linked to it by a thousand nerve fibres; and is the state entitled to sever all those nerves because that citizen has of his own initiative cut just one nerve? No; the state will see in the wood-stealer a man; for the state mutilates itself whenever it turns a citizen into a criminal. Above all, the moral legislator will shrink from placing an act which in the past has been considered blameless within the category of criminal activities.
The state has the means of safeguarding the rights of the citizen brought before a court in a way that accords with reason, the principle of generality and dignity residing in the state as well as with the rights, life and claim to proprietorship of the said citizen. If private ownership is too petty and small-minded to rise to the level of the state, the state is not thereby obliged to so demean itself as to adopt the arguments of private ownership which are at variance with reason and justice. Every modern state, however hard it may be to recognize in it the idea of the state, as soon as there is any attempt to turn it into an instrument of private interests, must surely exclaim, “Your ways are not my ways, nor your thoughts my thoughts!”
At a climax in his argument, when Marx wants the exalted character of the state to shine forth in its full lustre, he turns for help to a quotation from the Old Testament. This quotation from Isaiah 55, verse 8, fits so naturally and inevitably into the course of the argument that only a familiarity with the biblical text will serve to remind the reader that what confronts him here is a typical Old Testament prophecy. The inevitableness of it drives home the close kinship with the spirit of the Torah which is palpably evident throughout the article. So far, I have resisted the temptation to point to signs of this intrinsic affinity, even where the text itself prompts a comparison with some passage in the Bible. The fact is that the force of Marx's argument lies in the absence of any explicit reference to the Bible. It is not only that he does not need this; but an appeal to the Bible is put out of his reach by the sophistry of those he is attacking for the way they hitch the Christian religion to the wagon of their private interests. We would be enervating his argument, therefore, were we to insist on coaxing him back on to the path of his opponents, a path he had already abandoned.
Yet for that very reason this quotation from Isaiah, at this point, is all the more telling. The prophetic adjunct, “Hear the word of the Lord”, is naturally left out. The word of the Lord becomes the word of the state—and of the state speaking and acting at the level which “is appropriate as well to its reason, generality and dignity as to the rights, life and property of the citizen on trial”. It is the word of the state that stands so far above the objectionable level of private interest that it is fully operative in support of the rights of the oppressed person who has no rights. “The watchmen are blind,” we read in an apposite passage from Isaiah (Isaiah 56:10 f.), “they are all without knowledge, they are all dumb dogs, they cannot bark; dreaming, lying down, loving to slumber. And these dogs are greedy, they can never have enough; they are shepherds that cannot attend, they have all turned to their own way, each to his gain, without exception.” The spirit of this prophetic judgment is something we can recognize in Marx's analysis of the Sophistik des Interesses to which the Rheinische Landtag, despite its vocation to guard and protect the dignity of the state and the law, had fallen victim.
The Landtag deployed some astounding pieces of sophistry in the argumentation of the legal procedure in cases of wood-stealing, particularly in upholding the central position assigned therein to the forester. The new legislation not only allowed this employee of the landowners to bring a charge of wood-stealing, but also gave him the right to compute the value of the stolen wood. It would have been difficult to choose a worse valuer; for the person of the forester is the very embodiment of the tutelary spirit of wood (der personifizierte Schutzgenius des Holzes). The forester and the wood grow together, as it were. The wood is everything to him, it is bound to be of absolute value in his view: and in his assessment-return he will assess not only the value of the stolen wood but his own value as well, which is, in fact, the value of his activity as a forester. Do you really believe that this man will not leap to defend the value of his object every bit as much as its substance?
A propos of this question of the valuation of stolen wood, Marx introduces the term “surplus value” (Mehrwert). As the concepts “value” and “surplus value” are to become key concepts in Marx's later work, Das Kapital, it is important to see how the term makes its first appearance in his writings. The issue here concerns the penalties, embodied in the legislation, to which the wood-stealer is subject—penalties that can involve, besides some years of corrective punishment, restitution in the form of forced labour for the benefit of the wood owner. In this way, Marx contends, the wood-stealer becomes an item of capital for the owner of the forest, and the theft itself is converted into a form of interest. Indeed, the surplus value of the wood, that economic bigotry, is changed by the theft into something of substance (sogar der Mehrwert des Holzes, die ökonomische Schwärmerei, verwandelt sich durch den Diebstahl in eine Substanz). A moment ago we came across the term “substance” as the absolute value that the forester assigns to the wood because he identifies the wood's value with his own. He puts his heart and soul into the wood, as it were, and then, like the forester he is, he watches over his own heart and soul; or to put it another way, the substance of the wood has become his substance, he has acquired a “wooden soul”. Now the term “substance” returns as the “surplus value” the wood acquires when the theft is converted into capital for the wood owner. The “surplus” in “surplus value”, the surplus over and above the exact “value”, comes about through the metamorphosis of an object, wood, into the person of its owner. In that metamorphosis, the exact value is transposed into an in principle unlimited surplus value; in principle unlimited, because the surplus value fundamentally represents the absolute value of the person of the wood owner.
Marx calls this an “economic chimera” or a piece of “economic bigotry” (ökonomische Schwärmerei). It stands in radical contrast to the exact valuation of the wood that would be carried out by an impartial assessor. He confronts the stolen wood in a spirit of sceptical distrust, sizes it up with a very prosaic glance and using a profane measure (er misst es mit scharfem prosaischem Auge an einem profanen Mass), and tells you down to the last cent how much it is worth.
“Sceptical distrust”, “prosaic glance” and “profane measure” are the critical points of reference that mercilessly expose every form of “economic bigotry”, treat an object with objective judgment as an object and prevent a person from being transformed into an object or an object into a person. Objective assessment treats the value of an object as objective value and resists any attempt to turn it into a subjective value that would make the value a surplus value and, in principle, absolute value. Just as objectivizing the subject nullifies the absolute value of the subject and makes it, in principle, value-less, so vice versa, subjectivizing the object lends it a surplus value, an absolute value, which does not belong to it. “Value” becomes “substance”.
We have here before us, in essence, the critique which Marx is to elaborate later on in the Kritik der politischen Ökonomie. That is why it is of cardinal importance to see straightaway, at the outset of this critique, that the “critique of law” is at bottom a “critique of religion”. Where injustice has assumed the mask, the religious mask, of justice, a critique of law cannot be other than at the same time a critique of religion.
Indeed, the term ökonomische Schwärmerei—economic bigotry—is a striking expression of the essential unity of Marx's critique of law, of economics and of religion. For Schwärmerei is a typical term from the critique of religion. It recurs in Marx's analysis of the sophistical spirit of private interest (sophistischen Geist des Privatinteresses). Private interest possesses two sorts of measure and weight, with which it weighs and measures human beings, two kinds of viewpoint on the world, two pairs of spectacles, one of which produces black and the other variegated colours. If it is a question of exposing other people to its manipulations, or of glossing over dubious means and resources, then private interest dons its multi-colour spectacles, enabling it to see its manipulations and means steeped in fantastic glory; then private interest assumes the role of virtuoso conjurer and mesmerizes itself and others with the unpractical and sweet chimeras of a generous and trusting soul (da gaukelt er sich und andere in die unpraktischen und lieblichen Schwärmereien einer zarten und vertrauensvollen Seele ein). But the moment the question of self-advantage arises, ownership puts on its worldly-wise, dark spectacles, the practical ones. Then it is a matter—behind the scenes where the illusions of the stage fade away—of submitting the tools and resources to the hard test of usefulness.
There is nothing more fearsome than the logic of self-interest (die Logik des Eigennutzes). That logic, which transforms the wood owner's employee into a state official, also converts the authority of the state into an employee of the wood owner, whose interest turns out to be the moving spirit of the entire mechanism. All the organs of the state become so many ears, eyes, arms, legs, with which the interest of the wood owner hears, watches, assesses, protects, grasps and walks. And this predominating soul of the mechanism becomes, in the romantic conception of the legislator-cum-wood owner, in the hazy notion of his own personal superiority, in a poetic ecstasy, magically transmuted into the true guarantor meting out justice to the wood-stealer.
Terms like nebelhafte Vorstellung, poetische Selbstentzückung, romanhafte Vorstellung might function without more ado in the critique of religion; but we are concerned here with the critique of law. Once the term “ideology” is introduced, actually in connection with the expression “free will of private persons” (freie Wille der Privaten), employed by one of the deputies. Marx explains this as a “sudden, rebellious entrance of ideology”; for “when it comes to the ideas, we have before us simply and solely the followers of Napoleon”. The sophistry of interests has so manipulated “free will” that it is precisely covered by the arbitrary conduct of privileged private persons.
This sophistry has manipulated the law in so masterly a fashion that we are landed by the period of public law in the period of a tribal and dynastic law returning with twice its former strength. Those who own ancestral estates use modern advances to arrogate to themselves both the private punishment typical of a barbarian outlook and the public punishment that belongs with a modern world view. Wood possesses the remarkable property, directly it is stolen, of acquiring for its owner capacities of a public nature which he did not possess before. If, beside a private right, the wood owner possesses a constitutional right vis-à-vis the wood-stealer as well, then it would seem that he has been robbed not only of the wood but of the state too; and so the state has become a private asset of his. Evidently, the thief has been a second Christopher, carrying in the stolen logs the state itself upon his back.
Once again Marx has recourse at a climactic point of his critical analysis to a directly theological conclusion. Having first, in a passage quoted from Isaiah, made the state a mouthpiece of the Word of God, he now compares the state with Christ. His purpose is the same, namely, to illuminate the exalted character of the state and to show how impossible it is that the state should ever come to be an item of private property. His case is argued with great subtlety: it is not the private landowner, the usurper who claims the state as his private property, who is equated with Christopher, but the wood-stealer. The image is a striking one: the wood-stealer, carrying the stolen logs on his back, turns under the manipulations of private ownership into a second Christopher. He carries “in the stolen logs the state itself upon his back”. First the wood is raised to the status of a divinity, acquires an absolute value; and then, via an absolutized private law, even the law of the state is turned into a private asset. But, Marx would imply, even were the wood to allow of this metamorphosis, when it comes to the state, it is really quite absurd. Just as Christopher collapsed beneath the load of Christ so the burden of constitutional law is too heavy for any private person. The analogy is so subtle that it unites in a single focus the critique of law with the critique of economics and of religion.
The sophistry of private interest is compared on several occasions with that of Shylock in Shakespeare's Merchant of Venice. Eventually it gets to the point where the forest owner acquires, instead of a chunk of wood, a “one-time human being” (an die Stelle des Holzblockes einen ehemaligen Menschen). Woe to the state that sells itself to interest of this kind. The state is bound to say, I guarantee justice against all the vagaries of chance and accident; but the state cannot say, a private interest is guaranteed against all the whims of accident, is immortal. The state is powerless against the nature of things; it cannot make something that is finite immune from the conditions of finitude, from fortuity (Der Staat kann nicht angegen die Natur der Dinge, er kann das Endliche nicht gegen die Bedingungen des Endlichen, nich gegen den Zufall stichfest machen). If the wood-stealer is too poor to make restitution, all that means is that every legitimate way of obtaining compensation is closed. The world is not for that reason out of joint, nor does the state thereupon forsake the celestial path of its justice and authority; and you know by experience the transitory nature of earthly things—an experience that can scarcely strike your deep-rooted, religious sensibility as an intriguing novelty or as more strange than storm or fire or pestilence. If the state is supposed to turn the thief into a temporary serf, then it would be sacrificing the imperishable nature of justice to your private interest. You want the state to relinquish its sacred authority so that your hunk of wood may be avenged.
One of the representatives of the landed nobility observed that a lot of thefts involving wood were committed in order to obtain board and lodging in gaol; for which reason he argued for putting the prisoners on a bread-and-water diet. This remark drew from Marx's pen the ironical query whether the real remedy for thieving might not rather be to elicit a livelier sense of religion. He had heard the Landtag speak so often and so affectingly of this. Who could have suspected then that bread and water are the true means of grace? What a handsome parade of words there had been then, with a view to procuring for the people of the Rhineland a seat in heaven; and how prodigal they are with words now, with a view to lashing a whole class of the population into hard labour on bread and water, a scheme which even a Dutch planter can scarcely permit himself to apply to his black workers. What does all this signify? That it is easy to be holy when one has no thought of being human.
So Marx reaches his conclusion: interest has scored over justice (das Interesse hat das Recht überstimmt). Interest is of its very nature blind, immoderate, partial, in brief, a lawless natural instinct. And can there be such a thing as lawless laws? Whereas the Rhinelander should carry the day in the Landtag over the privileged class, and the person qua person should count for more than the forest owner, the Landtag has on the contrary become a class assembly, a gathering of private interests (Ständeversammlung der Sonderinteressen). In contrast to what some authors think they discover as an ideal romanticism, an unfathomable depth of feeling and fruitful source of morality in the representation of private interests, the reality is that it serves to abolish every natural and intellectual distinction. In its place is enthroned the amoral, injudicious and unfeeling abstraction of a given matter and a given consciousness which is the slave of that abstraction.
Wood is as much wood in Siberia as it is in France; forested estate is forested estate in Kamtshatka as much as in the Rhineland. If then wood and those who own it are ipso facto the law-makers, there is nothing to differentiate between those laws, unless it be their geographical location and the language in which they are expressed. This reprobate materialism (verworfene Materialismus), this sin against the holy spirit of whole peoples and of mankind itself, is a direct consequence of the doctrine which the Preussische Staats-Zeitung urges upon the legislature: namely, when the matter in hand is a law concerning wood, to think exclusively in terms of wood and woodland, without seeking to resolve the special material problem in political terms, that is to say, within the total context of the rational and moral character of the state (Staatsvernunft und Staatssittlichkeit).
“The savages of Cuba took gold to be the fetish of the Spaniards. They held a solemn celebration with song and dance, and then threw it into the sea. If the Cuban savages had attended the session of the Rheinischen Landstände, would they not have taken wood to be the Rhinelanders' fetish? However, a subsequent session would have taught them that fetishism is bound up with animal-worship; and the savages of Cuba would have tossed the hares into the sea in order to save the people.”
This final passage is an allusion to the draft legislation denying the peasants the right even to hunt hares on their own land.
