马克思的法律思想初探

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摘要: 马克思第一次科学地揭示了法的起源、阶级本质及其基本规律, 从而在法学领域实现了一次彻底的革命。尤其是在法学理论和刑法学方面,通过深入的学习和研究马克思法律思想, 对于繁荣法学研究, 健全社会主义法制, 有着重大的理论意义和现实意义。

Abstract: Marx scientifically revealed law origin, class nature and its basic rule, thereby achieving a complete revolution in legal field. Studying Marx’s legal thought has great theoretic and practical significance to flourish the study of law and improve the socialist legal system.

关键词: 马克思的法律思想;法律的基本理论;刑法

Keywords:Marx's Legal Thought;the basic theory of law;criminal law

中图分类号:DF08 文献标识码:A文章编号:1006-4311(2010)08-0225-02

Engels once commented "In every single field which Marx investigated -- and he investigated very many fields, none of them superficially -- in every field, even in that of mathematics, he made independent discoveries "[1]Marx scientifically revealed law origin, class nature and its basic rule, thereby achieving a complete revolution in legal field. In the anniversary of Marx’s death, further studying Marx’s legal thought has great theoretic and practical significance to flourish the study of law and improve the socialist legal system.

Marx's legal thought occupies an important position in the treasury of Marxist theory. The majority of The Complete Works of Marx &Engels (Vol. 1) is Law monograph and the frontispiece paper "Assessment of Prussia recent censorship order" is exactly a legal paper. Marx has formed a complete legal system in "German Ideology" and "the Communist Party of appropriate words" later co-written with Engels. And there is also a brilliant legal thought of Marx even in "Critique of the Gotha Program", "French civil war" and other Letters, extracts written in his later period. Marx's legal thought is extensive and profound and this paper only discusses a little from the basic theory of law and criminal law theory.

1

The origin of the law is the first problem to encounter in jurisprudence. Some of the Jurists in all the past dynasties believed that law originated in God, some regarded law as the result of social contracts or the product of God and so on. No one can really solve the problem of the law origin. Marx came to the conclusion through the study of Political Economy "Just as the formation of the State, the relationship between laws can neither be understood from themselves nor from the so-called general development of the human spirit. On the contrary, they are rooted in the material life relationship. According to the precedents of century British and French, Hegel called the sum of this kind material life relationship Fcivil society′". "While a anatomy of civil society should be sought in Political Economy".[2]This actually designated the origin of law. The law originated in their economic living conditions, it’s an inevitable outcome of material production relations developing to a certain stage. "If a production mode lasts for a period, then it will be fixed as customs and traditions , eventually be sanctified as express law "; "people who dominate the society always sanctify the reality as a law and want to use the law to fix various restrictions caused by customs and traditions "[3] Thus, law was generated as long as the private ownership, class and country generated, it’s the result of the development of social productive forces which caused changes in the relations of production, and then caused reform in the whole superstructure including the social norms which adjust the social relations.

The nature of the law is the most basic and complicated problem of the law and it’s also one of the most tumultuous and mysterious problems made by long-standing exploiting classes, thinkers and lawyers. The so-called divine will theory, justice theory, power theory and normative theory coexist and all have different arguments, however, neither of them can reveal the nature of the law. Only Marx scientifically revealed the nature of the law for the first time that is law is the expression of will determined by the common interests of the ruler. Marx further revealed the nature of the law through the critique of capitalist legal system in The Communist Manifesto, “Your idea itself is the product of the bourgeois conditions of production and relations of ownership, just like that the law is noting more than the will of your class and the content of this will is determined by conditions of material life of your class”. This still has practical guiding significance for us to understand the nature of the law and three things must be paid enough attention at least. First,the law is the concentrated expression of the ruling class’s whole will rather than a single person's arbitrary. It only reflects the will of the ruling class and could never be the representation of so-called common will or the will of all the people. Even the reflection of the ruling class, it’s the concentrated expression of the ruling class’s whole will rather than the reflection of all members’ individual will. As Marx pointed out, "The law is embody of social common interests that is brought from material mode of production rather than a single person’s rampage "Second, this will of the ruling class is the will of the state which is regarded as law. Law reflects the will of a ruling class but not all the things reflect the will of the ruling class are law. Philosophy, literature, religion, policy, etc., all can express the will of the ruling class but they are not law, only the will of the state which is regarded as law can have the feature and effect of the law. Marx once talked about this in Germany Ideology, "People who are dominant in these relationships must make their own power be a country. Besides, they also must make the ideology determined by a definite relationship gain a universal expression as the will of a country and the law. "Third, the will of the ruling class expressed by law is finally decided by their material living conditions. The law, as the expression of the ruling class’s will, isn’t made without foundation or done as one wishes or created at will , it’s based on a definite relationship and is objective. Marx clearly pointed out in Philosophical Poverty "only people without any historical knowledge don’t know that sovereigns have to obey the economy conditions in any time and can’t order the economy conditions for ever. Both the political law and the civil law are nothing more than indicating and recording the request of economy relationships, of course, it’s not negative or passive for the law to reflect economy, instead, it’s positive and active having a counteractive to economic foundation. Marx’s treatise on the law’s essential attribute is the foundation for socialistic law of our country to make a point and this will not be indecisive for ever. Socialistic law still expresses the will of ruling class and it reflects the will of the working class and vast people to govern the country.

2

Marx put forward some important thoughts on criminal law .Marx’s thought on criminal law is mainly expressed on the following aspects: the analysis on the cause and the essence of criminal; penal theory.

Bourgeois school of criminal anthropology proposed "born criminal" theory on analyzing the cause and the essence of criminal. They dare not make an essential exposure or an objective explanation. Marx showed in the magnum opus ―On Capital "because the feudal retainers were dissolved and the land was deprived off and on by force, the outcast, this working class without protection of the law, couldn’t be absorbed by the burgeoning workshop handicraft industry so quickly just as it’s nativity. On the other hand, these people suddenly detached from an accustomed life also couldn’t adapt themselves to the discipline in a new state at once. They became beggars, robbers and tramps by the hundreds. Some of them were out of custom but mostly were forced by circumstance ".[4]This showed that capitalism system is the main source of crime. The capitalism was born going with crime. At the same time, the nature of crime is also a closely guarded problem for lawyers of exploitative class. They dare not admit the class nature of crime in public. Marx made a scientific explanation about this in Germany Ideology "crime―isolated individual fight going against the domination relationship, the same as the law, is not caused at will, on the contrary, both crime and current domination grow out of the same condition. "[5]

In terms of penal theory, Marx firstly put forward his sentencing principle of suiting punishment to crime through the heavy critique of the bourgeois heavy penalty doctrine. Marx showed “If the concept of crime includes punishment, the actual crime should have a certain punishment scale. The actual crime has its limits, even for bring punishment into reach, punishment should also be limitary―If punishment is to be a legal one, it should be limited by the principle of law. The task is to turn punishment into a real crime result. Punishment, to criminal, should be an inevitable result of his behavior―So it also should be a behavior of himself. The limit of his being punished should be the limit of his behaviors.”[6]It should be noted that the principle of suiting punishment to crime was first raised by a bourgeois progressive criminal jurist Beccaria. It’s a revolution in penal law field as well as one of Marxist contributions to penal law theory to absorb Beccaria’s advanced view that is the sentencing principle of suiting punishment to crime into proletarian penal law and reconstruct it. Hold to this principle in any case, oppose heavy penalty doctrine and exceedingly heavy or light sentencing, bring the special function of penal law into full play in order to prevent and fight against various crimes availably and ensure social stability.

参考文献:

[1] 《The Complete Works of Marx &Engels》VOL3. P574-575.

[2]《The Complete Works of Marx &Engels》 VOL2. P82.

[3]《The Complete Works of Marx &Engels》 VOL25. P894.

[4][5][6] 《The Complete Works of Marx &Engels》VOL1. P16-18.