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Law: Legal essay

Four tips on how to write a good law essay.

An essay is a common type of assessment in a law degree. This resource offers tips and resources to help you plan and write law essays. There are usually two types of law essays: the theoretical based essay and the problem-style essay.

The theoretical based essay may ask you to critically discuss a new piece of legislation or a recent case in relation to existing laws or legal principles. You may also be asked to take a side in an argument or discuss the wider societal implications of a legal outcome.

Problem-style essays require you to advise a party based on the analysis of a scenario or given problem. You will be required to identify the legal issues and apply relevant law. See more on legal problem-solving in this resource . This resource will focus on theoretical based law essays. There are a number of strategies that may help you in starting, structuring and presenting a law essay.

1. Starting your answer

The first step to a successful law essay is understanding the question. One of the most effective ways of breaking down the question is to identify the direction, content, and scope or limiting words.

For example, look at the following essay question:

Direction Words : Critically analyse.

Content Words: tort of negligence; tort of battery; consenting to medical treatment; patient’s right (autonomous decision).

Scope/Limiting Words: the extent to which, protect.

• In this case, we need to critically analyse an area of law.
• Here, we need to research the torts of negligence and battery and the issues of consent in medical treatments and patients’ rights .
• Here we should critically analyse how well (the extent to which) the aforementioned torts do or do not protect patients’ rights in the context of medical consent .

You may also find it useful to look at the rubric to help you interpret your examiner’s expectations.

2. Planning your argument

When reading a case, journal article, book chapter or online article, it can be hard to know exactly how to use the source in an essay. This is where taking good notes while reading critically is helpful. Take a look at our other resources to help you Read critically and Read difficult material .

The next step is to take notes that help you understand different arguments and issues, or information and context, and refer back to your assignment question to keep you on track.

Writing a very short summary of each source is a great way to start. For example, for each journal article you read, try to summarise the author's main points in a few lines. This will help you to articulate the meaning in your own words.

Then, expand on this summary with some key points. Be sure that when taking notes, you make a note of the source and the pinpoint reference or page number, so that you can correctly cite the source in your essay.

Planning strategies

Understanding arguments.

Think about how you will use your resources. You may use a primary or secondary resource to:

• to support your argument with evidence
• to demonstrate a range of issues and opinions (remember, it’s OK if you don’t agree with all your sources! Show where these contrasting arguments fit into your discussion)

It may be helpful to ask:

• How does this source contribute to my argument?
• Do I agree or disagree with the author’s argument?

See our resource Master the art of note-making and Brainstorming and mind mapping for more tips.

Integrating resources into your essay

It is important to use your research well. One way to do this is to plan the main points of your essay, and how you will use your primary and secondary resources (such as journal articles, books, case law, legislation, websites) to support one or more of those points.

3. Structuring your answer

A key element of successful law essays is the structure. A good structure will enable you to communicate your ideas fluently and efficiently. This is an important and highly valued skill not only in law school, but in practice as well.

Usually, your essay requires an introduction, body paragraphs and a conclusion. Generally, you should have one idea per paragraph. This may mean shorter paragraphs than what you would ordinarily write in high school or other faculties. Concision is key in law. Therefore, we recommend a short paragraph which efficiently addresses an issue over a long and winding exploration of many different issues.

Remember to use subheadings to provide structure to your writing. It is a good idea to come up with your subheadings before you start writing so that you have a structure to follow. The subheadings should act as a series of subtopics which reflect the arguments needed to substantiate your thesis statement.

Below we have an overview of the working components of good law essays. Examiners expect you to use all of these in your writing. The samples come from Julie Cassidy, ‘Hollow Avowals of Human Rights Protection: Time for an Australian Federal Bill of Rights?’ (2008) 13 Deakin Law Review 131.

NB: This is an illustrative example only. It is not concise enough for an undergraduate research essay and you would be expected to remove phrases like “In the course of, it is suggested that, in regard to.”

4. Presenting your ideas

In order to do well, you must also present your essay so that it reflects academic standards. This includes correct citation practices, subheadings, Plain English, and grammar and spelling.

Examiners highly value closely edited and proofed work. First-year students commonly rely too much on passive constructions and embellished language. Good lawyers write in clear and concise English that is easily understood.

• Correct Citation
• Subheadings
• Plain English
• Grammar and Spelling

Your essay must adhere to the AGLC4 rules , including appropriate pinpoint footnotes and bibliography.

A comprehensive guide to AGLC4 is provided by the Library.

Law essays use subheadings frequently, but judiciously. This may be different to what you are used to.

Subheadings also help provide a structure. See the previous section for more advice.

In accordance with AGLC 4, the first word of your heading must be capitalised.

Examiners do not want to see the full extent of your vocabulary. They prefer to see complex arguments rendered in simple language.

This, surprisingly, is not easy. We tend to think through writing. That is, our ideas come to us as we are writing. This leaves a lot of writing which is repetitive, vague, or contradictory as our ideas evolve.

Use the editing worksheet to learn which words you can easily swap out to improve readability and strategies to avoid long-winded constructions.

Do not leave your assignment to the last minute. Not only will this create undue stress, but you will not have adequate time to proofread your assignment.

When we work intensively on a piece of writing, we need a period of time away, or distance, in order to re-read our work objectively. Give yourself 2-3 days before the due date so you can print your text and edit it carefully to remove any typos or grammatical errors.

Services like Grammarly may help to pick up errors that are missed by Microsoft Word.

Further resources

Legal essay strategies, legal essay strategies accordion.

• Writing a Law essay mind map Take a look at this useful mind map to see the steps involved and the questions you should ask yourself when writing a law essay.
• Melbourne Law School: Research essay guide / Legal essay checklist
• Professor Steven Vaughan (University College London): How to write better law essays ( Prezi slides )
• Associate Professor Douglas Guilfoyle (University of New South Wales): Plain Legal English ( YouTube playlist )
• Professor James Lee (King’s College London): #FreeLawRevision Guides (see especially Essay Technique Parts 1, 2 and 3) ( YouTube playlist )
• Strategies for Essay Writing - Harvard College Writing Center See particularly, the section on Counterargument.

Examples and language

• University of Western Australia Law School: Examples of legal writing
• Columbia Law School: Writing in plain English
• Dr Patrick Goold (City, University of London): ‘It’s a subject where words matter’: how to write the perfect law essay ( The Guardian )
• 'Don't just vomit on the page': how to write a legal essay Law lecturer Steven Vaughan (University College, London) explains why the best essays take discipline, editing, and teamwork.

Effective Legal Writing: A Practical Approach

Corbett-Jarvis and Grigg

How to write better law essays : tools and techniques for success in exams and assignments

Steve Foster

How to write law essays and exams

Stacie Strong

Legal Writing

Lisa Webley

Level Up Your Essays: How to get better grades at university

Inger Mewburn, Shaun Lehmann, and Katherine Firth

Your feedback matters

We want to hear from you! Let us know what you found most useful or share your suggestions for improving this resource.

Writing a First Class Law Essay – A Framework for Success

Table of Contents

😁 Introduction

❤️ main body, 🎉 conclusion, 📝 references, 🙌 final words.

Writing a decent essay in law school is crucial if we want to get top grades. But it’s important to remember that there’s rarely every one single correct way to approach them. There is no blueprint that we can follow step-by-step to give us a first-class result. 

Nevertheless, there is a framework for success in legal essays that CAN be followed. 

From the moment we get given our essay title to the moment we hand it in, there are some basic principle that we should be aware of that form the foundation of excellent essay writing. And that’s what this article is all about. If you stick around until the end I’ll also be giving you a free guide to help you out even more.

Before we even think about writing our essay, there are a few preliminary steps. The most important of which is research. 

To begin with we need to have two clearly designated areas to write our essay and take our research notes. So simply open up two documents on your computer (e.g. in Word), with one titled ‘essay’ and the other titled ‘notes’. Then divide BOTH of these pages into four sections: introduction; main body; conclusion; and references.

At this stage – the research stage – we’re only interested in our ‘notes’ document. 

What is the question asking you?

To research effectively we need to be aware of precisely what the question is asking from us. 

Many students fall into the trap of trying to answer the question that they want to answer (because they know that area better), rather than the one that’s actually been given. So spend some time to wrap your head around the question and whether it expects you to ‘discuss’, ‘evaluate’, ‘critically analyse’, etc

What resources should you read?

Once you’ve understood the question, it’s time to begin reading relevant and appropriate academic resources and other scholarly materials.

My advice would be to begin reading the relevant sections of 1-2 textbooks to ensure you have a full appreciation of the topic. From this, you should be able to form a high-level response to the question. In other words, the basic information from the textbooks should allow you to form a rough opinion on the question that drives your deeper research and preparations. 

By having a rough understanding of your answer, it makes it a lot easier to identify relevant cases, journal articles, statutes, treaties, and so on. Plus, it will make searching through Westlaw, LexisNexis, or some other legal research database quicker and more useful. 

Whenever you find a piece of information that may be useful, remember to drop it into the correct section of our ‘notes’ document and remember to give it a reference straight away. Honestly, references can be incredibly painful if you don’t spend the time to cite your sources straight away. (The amount of time I’ve wasted hunting down a source for something because I didn’t write it down straight away is ridiculous). 

Now we have all the information we need, we can think about the structure and writing the substantive part of the essay within our ‘essay’ document.

The introduction of your essay should be concise. 

The purpose of the introduction is to ensure you have understood what the question is asking you, give the essay an appropriate focus, and presented a clear structure as to how you’re going to answer the question.

Put simply, you need to tell the reader what you’re going to discuss and how they’re going to be led from start to finish, bringing them to your eventual conclusion. 

Many students will use the introduction incorrectly, seeing it as an opportunity to intrigue rather than inform. They often believe that an essay is like a story, where the outcome can’t be revealed until the end. But an essay isn’t like a story at all. And effective essays will hint at the eventual conclusion right away. 

Check out my introduction on an essay I wrote to give you an example of what, I think, is a pretty decent introduction:

Although you need to demonstrate you understand the law and the relevant legal concepts behind the essay question (i.e. describe), the most crucial aspect of first-class essay writing is analysis and evaluation.

You need to demonstrate that you can identify the limitation of a particular law or point of view, consider where a judgment is incomplete or illogical, and developing your own viewpoint throughout the essay. 

Many students will leave their analysis until the conclusion, which is far too late. Instead, analysis needs to be intertwined throughout the essay itself. Understand what your opinion is, question legal assumptions, and avoid regurgitating the opinion of academics. 

I’ve found that it doesn’t matter how clumsy your own opinion is, as long as you have an opinion. There is never a correct way to approach legal grey areas, so it’s best to have an opinion and provide sufficient amounts of supporting evidence (from cases, journals, etc.). 

Crucially, ensure that each of your points are well-developed. When students feel out of their depth, they will demonstrate this by moving on to a new topic quickly without getting to grips with the point they’re trying to make. So get comfortable with the legal uncertainty surrounding your essay and be confident enough to have an opinion and back it up. 

Expressing Yourself

First class essays are truly unique. As a reader, you not only see that the student has fully understood the law but has made a clear effort to express themselves.

Importantly, you should aim to explain key concepts or ideas in your own words. This shows that you actually understand what these key concepts or ideas are without relying on someone else’s formulation. 

Students often think that their opinion or interpretation is less valid compared to professors or other academics. The truth is, your opinion is equally valid. If you see a legal concept or a legal idea from a different angle, don’t be afraid to let that known. You’ll be rewarded for doing so. 

Similarly, quotations should be rarely used and – when they are used – with good justification. The problem is, if you’re quoting other academics too often, you will water down your own opinions and ideas. Excessive quotations makes your essay into a patchwork and reformulation of thoughts from other people, and doesn’t adequately demonstrate your own ability to analyse the law.

There are really only three instances you should be putting direct quotations into your essay:

• It supports something you’ve already said in your own words
• It’s difficult to summarise a topic in your own words due to certain complexities or technicalities
• It would be less effective to do so (perhaps because the original quotation is very well-known)

Style and Tone

When you write a legal essay you have a choice between writing in the first person (e.g. ‘I argue that . . .’) or the third person (e.g. ‘it is argued that . . . ‘). It’s completely up to you.

However, like with the previous two points I’ve made, it’s crucial the tone you choose gets your own point across. For instance, the problem with the third person is that the phrase “it is argued that” could mean “I argue that” or “others argue that”. So, if you do opt for the third person (or your university prefers it that way) be aware of the potential limitations in helping you to make your point. 

Other than that, ensure your essay is clear, concise and accurate. You should understand the law as fully as possible before putting pen to paper. If you’re not too sure what the law is or what something means you’re going to have no chance of analysing it effectively. It really is as simple as that.

The purpose of the conclusion is to persuasively draw together and summarise everything that you have already argued. The classic mistake here is try to add some new piece of information, whether that be some new material, thought, or a point of view. But, this will ultimately weaken the conclusion and reduce its impact.

Your goal with the conclusion therefore is simple: package your argument into a short paragraph and demonstrate how that answers the original essay question.

Finally every claim you make must be supported with an appropriate reference. 

Often, you will need to point the reader to a primary law (e.g. a case or statute), but other times the academic opinion in journal articles or books will suffice.

Your university will likely have its own guidelines for references – such as OSCOLA – so do check this out to ensure you do yours correctly (and you will lose marks if you do it wrong). However, in an exam full references aren’t necessary. Simply provide as much context as you can to provide some attempt to reference the source (e.g. Evans said X about this topic or Denning said Y about this topic in the case of Tom vs Jerry [2001]). 

If you want, you can  download my FREE OSCOLA reference guide !

There is no ‘one size fits all’ for writing a great law essay, but following the structure and guidance from this article will take you much of the way to where you need to be.

Nevertheless, if you need further guidance, please  download my FREE guide  where you can find even more information on this topic.

Thanks for reading!

How To Write a Good Law Essay?

An excellent law essay should demonstrate detailed arguments and legal analysis, with a thesis statement that sums the argument up succinctly and concisely in two or three sentences. The aim should be that you are able to prove your conclusions, and importantly demonstrate that you are able to disprove competing views (the counterarguments). In general, you should first understand that a law essay will normally be focused on resolving a legal controversy, rather than dealing with application of the law to facts or problem resolution. This can be challenging for many students but following some key steps and principles will ensure that you can deliver an essay that has the following elements.

Plus, if you follow our tips and practical guidance you can be confident that your essay will deliver all of these pieces, in a way that ensures you demonstrate your ability to translate your knowledge of the law into a first-class assignment. The first thing to ensure is that you fully recognise the elements that all good essays share irrespective of the subject.

Key components of a good essay

Whatever your subject or discipline, but crucial in a law essay are the following elements for an outstanding essay:

• Attention to detail and a focus on the question posed.
• In-depth understanding of the right legal frameworks and laws clearly defined and described in simple language.
• Logical structure and flow
• Well-defended and clearly expressed thesis statement.
• Ability to demonstrate wider contextual issues, such as policy, history and clearly identifiable area of law.
• Critical application to answering the question.
• A level of creativity and original flair in the response, based on clear, well-researched legal arguments, including lateral thinking about less obvious points of law.
• Accurate referencing and use of any quotations or case law.
• Concise writing, and an effective style.

So, the list above shows what to incorporate into your essay but there are also some clear areas you should avoid.

What To Avoid In Your Law Essay

Do not use casual or informal language..

Keeping it simple does not mean informality; your style should remain academic and not include slang, abbreviations or colloquialisms, unless they are direct, properly referenced quotes.

Keep the overall look of the work balanced and always use full sentences.

Avoid overly long or short paragraphs and resist the temptation to use bullet points in your law essay as this does not demonstrate clear analysis or evaluation.

Avoid Incorrect citations of legislation.

Each university has different rules regarding how these should be presented in your law essays, so ensure you know and understand your institution’s requirements.

Credit all sources.

If you do not have a source, any legal argument not only loses credibility but becomes meaningless. Of course, all sources should also be credible, relevant and checked. At the same time, do not pepper your essay with irrelevant sources, each case cited should be there for a valid reason, and clearly evaluated and analysed.

Steps for Creating the Perfect Law Essay

Deconstruct and understand the question.

This does not mean choosing a side in the presented controversy, the important factor in a good law essay is to ensure that you propose a thesis, discuss, and then prove this, with effective use of legal argument and legal precedent. Other arguments are therefore a key element of your answer, as you need to be able to prove your arguments. Therefore, breaking down the question to understand the controversy under discussion, and then developing a thesis around the controversy. The ability to deconstruct a question can be challenging being of the potential for subtle allusions and issues that make the core area to be analysed appear vague or out of reach. The answer is to identify what you are being asked to do and what level of legal analysis and insight is needed to achieve this.

For example, an essay title may be given as “The Data Protection Act 2018 is a curtailment of personal freedoms” (A Non). Discuss.

To effectively answer this question, you need to identify what you are being asked to do. To discuss the quotation, the first stage is to elicit the background to the (fictional) statement. So, in other words, the essay is not about the statement as such, but instead is about the question (or questions) it raises, from a legal standpoint to identify whether the quotation is legally accurate.

In order to do this, there is a need for you to consider any counterarguments to the declarative argument given in the quotation. Thus, in the example above, the broad controversy to be discussed in your essay is whether Data Protection Laws are an invasion of personal freedom, or whether they are there to protect individuals.

Having determined the actual question being asked, the next stage is to find the answer and present this as a thesis statement, fully supported and proved by convincing legal arguments and a strong and coherent essay structure.

IMPORTANT TIP: Do not simply agree or disagree with the statement given in the title, but present solid arguments and counterarguments to illustrate how you have arrived at your conclusion, backed by credible and legal evidence.

This approach does not matter whether you are asked to examine any number of law topics in your essay, and there are number of different types, including:

• Legal Theory essays focus on discussion of why the law evolves as it does, backed by evidence.
• Legal Reform essays based on the undertaking of a recent law reform and its effectiveness, or alternatively whether a particular area is in need of reform. In these essays, the focus is demonstrating familiarity with historical and current laws and proposals in law.
• Legal History essays are founded in giving you the opportunity to identify gradual changes in a legal area. Legal reform and theory have a role in this type of essay, but the discussion is grounded in historical changes. The challenge with this essay is not to be overly descriptive, but to show evaluation and critical analysis.

Whatever type of law essay you are dealing with, you should ensure you maintain the basic principles of effective essay writing we have already given you, even while you ensure the focus of your answer is in the right area of legal writing.

Identify the Sources for Your Legal Argument

When an essay question indicates “discuss”, this would suggest you need to give an opinion. However, the opinion you present in a law essay should be one that is backed up by clear analysis and evaluation of all the legal facets of the situation. In other words, analysis or legal argumentation needs to follow certain conventions.

Reading of real-life cases and academic articles in the area are a good basis for identifying sources. Legal analysis is reliant, far more than any other discipline or credible sources. The validity of an argument in law comes from the source and precedent, not opinion or logic/attractiveness. Source in law means not just what was said but crucially also refers to who made the statement or judgement or wrote the article. In law there are two main authorities – binding and unbinding authorities. The first emanates from case law or legislation, whilst the second comes from Public Policy, Legal commentary, Dissenting judgements, Reform Proposals, and International Law.

First-class law essays should contain a mix of both binding and non-binding (or persuasive authorities). Using only one type of source is insufficient to give a wide enough perspective and counter argument in a legal controversy.

IMPORTANT TIP: Do not use long quotes from statutes, paraphrase if necessary, to ensure your essay is concise and makes your points clearly and coherently. Also ensure your sources are relevant to the question, the aim is not to demonstrate your wide reading of the law overall, but to illustrate that you can make a pertinent, valid argument and counterargument with appropriate sources.

Structure Your Essay Correctly

Getting your structure right – a simple rule of thumb is “say what you are going to say, say it, then say that you’ve said it” translated as Introduction – body text – conclusion.

Introduction

Your introduction should clearly state the purpose of the essay, and importantly should include your thesis statement. In other words, tell your readers in a creative and engaging way what you will be discussing. Your essay needs to hook your reader into being interested in reading further.

Your body text should be separated into separate paragraphs, each dealing with a different point that you wish to make. You can either make a point for one side, then deliver the counterargument before drawing an initial conclusion. Or you can present all the points for one side before moving to the counterargument. The first option can deliver a more logical, focused essay but can lead to a lack of balance if one argument is given more emphasis than another.

Your conclusion should be a summary of everything you have already said, concisely written and drawing together all the evaluations and analysis undertaken, but crucially not introducing new information. The closing statement of your conclusion should refer back to your thesis statement and whether this has been proved or disproved.

IMPORTANT TIP: Focus on simple, but academically proficient language, and do not put too much of an emphasis on legal jargon in your essay. You are producing a law essay not a case file. In all cases, ensure any sources are correctly referenced according to the requirements of your institution.

Key Phrases and words for Law Essays

As a final tip, here are some key phrases that can help your law essay stand out from others.

• This question deals with …
• The principal issue raised by this question …
• The main issue is whether…
• The issues to be considered are …
• The problem also raises the issue of
• On the facts presented, it can be argued that …
• It would seem, (therefore), that …
• It is possible that …
• It could be argued that …
• It would appear that…

When summing up in your conclusion the following phrases can be useful:

• On balance, it seems that.
• It is therefore concluded that…
• It is submitted that …
• In conclusion, it can be stated that …
• In consideration of the facts presented, it fair to conclude that …

Law Essay Examples

10+ Winning Law Essays Examples | Boost Your Grades Now

Published on: May 8, 2023

Last updated on: Jul 19, 2024

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Are you looking for inspiration to get started on your law essay? If so keep reading! 

As a law student, you're expected to have excellent writing skills. Your essays should be well-structured, articulate, and persuasive. However, it's not always easy to know where to start or how to approach your writing. 

That's where law essay examples come in - they provide a valuable resource that can help guide you through the process.

In this blog, we'll explore the law essay examples on different topics. Moreover, we will analyze the structure and format of a law essay. 

So, let's get started!

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What is a Law Essay? 

A law essay is a written assignment that requires the writer to analyze and evaluate legal issues, cases, or concepts. 

The purpose of a law essay is to demonstrate a student's understanding of the subject matter. It also shows the student's ability to present an argument in a concise manner. 

Want to gain more knowledge on how to write a high-quality law essay? Check out this video for insightful tips!

University Law Essay Examples

Let's take a closer look at some excellent university law essay examples that highlight the proper use of references.

Law Reflective Essay Example

Law Enforcement Essay Example

Law Reform Essay Example

Law Research Essay Example

Below, you will find some additional law essay samples that you may come across in your university assignments.

First Class Law Essay Example

Law School Transfer Essay Example

Law Essay Format and Structure

A well-structured and formatted law essay is essential for receiving high marks. Here are some key elements that should be included:

1. Introduction

• The introduction should introduce the main arguments of the essay.
• The first sentence should be attention-grabbing.
• The introduction should provide concise information about the broader significance of the topic.
• It should lead into the body of the essay.
• Each paragraph should have a clear topic sentence.
• The paragraph should include supporting evidence and analysis.
• The paragraphs should be logically connected.

3. Conclusion:

• The conclusion should summarize the main arguments of the essay.
• It should not introduce new information.
• It should demonstrate the significance of the arguments.

Let's take a look at an example of a well-structured law essay:

Check out the following pdfs for a better understanding:

Law Essay Format pdf

Law Essay Introduction Example pdf

Specific Law Essay Topics

Let's take a look at some specific law essay topic examples that can provide a foundation for deeper analysis.

Criminal Law Essay Example

Case Law Essay Example

Law Case Analysis Essay Example

Contract Law Essay Example

Ilac Law Essay Example

Public Law Essay Example

Critical Analysis Law Essay Example

Contract Law Essay Example Offer Acceptance

Additional Law Essay Samples

Let's explore some of the most frequently assigned law essay topics for writing assignments.

Development of Welfare Legislation for Animal Testing

Legal Analysis of Donald Trump's Leadership Style

Torts of Negligence and Battery in Medical Law

The Frustration of Contract in the Coronation Cases

Effectiveness of Gun Control Laws in the United States

The Unjust Intersection of Police Brutality and Racism

Nike Faces Gender Discrimination Lawsuit

A Dream to Become a Lawyer

Hate Crime Laws

Law Essay Writing Tips and Best Practices

Writing a law essay can be a rewarding and fulfilling experience. Here are some tips and best practices to help you write a successful law essay:

• Understand the assignment: Before you start writing your essay, make sure you understand the assignment requirements. This includes the topic, formatting requirements, and any specific instructions from your professor.
• Research extensively: A good law essay requires thorough research on the topic. Make use of primary and secondary sources, such as case law, legal journals, and academic articles, to support your arguments.
• Plan your essay: Before you start writing, plan your essay structure. This includes an introduction, body paragraphs, and a conclusion. The body paragraphs should be organized logically, with each paragraph focusing on a specific point or argument.
• Use clear and concise language: The language used in a law essay should be clear, concise, and precise. Avoid using jargon or technical terms that may be unfamiliar to the reader. Use plain language that is easy to understand.
• Cite your sources: In a law essay, it is important to cite your sources properly. Use the appropriate citation style, such as APA or MLA.  Make sure to include a bibliography or reference list at the end of your essay.
• Use reputable sources: Ensure that your sources are reputable and reliable. Use academic databases, such as LexisNexis or Westlaw, to find legal cases and journal articles.
• Seek feedback: It can be helpful to seek feedback from your professor or a peer before submitting your essay. This can help you identify any areas that need improvement and ensure that your arguments are persuasive and well-supported

Common Mistakes To Avoid In Law Essay Writing

Here are some most common mistakes to avoid when writing a law essay:

• Failing to answer the question: Make sure that your essay clearly answers the question posed.
• Lack of clarity: Ensure that your essay is clear, concise, and well-organized.
• Plagiarism: Avoid plagiarism by properly citing all sources used in your essay.
• Inaccurate legal analysis: Ensure that your legal analysis is accurate and supported by legal authority.
• Poor syntax: Use proper grammar and syntax to ensure that your essay is well-written and easy to understand.

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Evgeny Pashukanis

Lenin and problems of law.

Lenin i voprosy prava , Revoliutsiia prava: Sbornik 1 (1925), Kommunisticheskaia akedemiia Moscow. From Evgeny Pashukanis, Selected Writings on Marxism and Law (eds. P. Beirne & R. Sharlet), London & New York 1980, pp.132-64. Translated by Peter B. Maggs . Copyright © Peter B. Maggs. Published here by kind permission of the translator. Downloaded from home.law.uiuc.edu/~pmaggs/pashukanis.htm Marked up by Einde O’Callaghan for the Marxists’ Internet Archive .

Introductory Note

The following essay was Pashukanis’ earliest attempt to seek anticipatory support for the serious implications of The General Theory of Law and Marxism , in Lenin’s voluminous yet fragmented writings on law. It was written in the context of two unresolved questions in the indecisive period after Lenin’s death in 1924. What form ought to be attached to the content of Party rules and directives? What ought to be the attitude of the Party and the Soviet proletariat towards the demand for the right of nations to self-determination? And, of course, within the framework of the debates between Bukharin, Trotsky and Stalin concerning centralization and the doctrine of socialism in one country, these questions were not entirely unrelated. Pashukanis argues that a revolutionary Party must follow a course which avoids the dangers both of the complete rejection of legal struggle and of the fetishism attached to legal rules. Legality is not an “empty sack” that can be filled with a new class content immediately after the revolution, and under the New Economic Policy the legal form must be used as a weapon in a programme of cultural re-education. Pashukanis’ response to these questions appeared in a special collection entitled Revolution of the Law , which was edited by Stuchka and included such distinguished theorists as Bukharin, Adoratsky and Razurnovsky. This collection was intended as the first systematic expression of the Marxist jurists.

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Lenin, although a jurist by education, never devoted special attention to problems of law. From this, one could draw the rather hasty conclusion that such a category should receive no attention at all in the systematic study of his immense ideological legacy. However, this would be incorrect. To begin with, a series of isolated observations and thoughts relating to law are scattered throughout his work. They merely need to be extracted, sorted and systematized. Lenin’s contribution to this subject, insufficiently developed by Marxists, can only be evaluated after this task is accomplished. In addition, not all of what Vladimir Ilich wrote in the Soviet period, not directly intended for publication, has yet been published, i.e. his writings relating to the practical problems of constructing the Soviet state which have been preserved in the form of numerous directive notes and letters to individual comrades, as well as every possible type of order, instruction etc. Only when all of this material is systematized and published will we be able to conceive a truly comprehensive idea of what Leninism means for the problems of law.

In the present article, naturally, we do not expect to achieve the exceptional results of work which would require substantial and, probably, collective efforts. But one point should be made at this juncture. One can obtain a much more correct Marxist and dialectical approach to the problems of law from Lenin, who did not write especially on law, than from other Marxists who especially dedicated themselves to these questions. To prove my point, I will give one example. The problem concerns one of the basic legal institutions: the institution of private property. Certain Marxists, following Renner’s example, present the dialectic of this institution in an entirely simplistic manner:

In the age of isolated and closed natural economy, the right of ownership of things could actually be considered as the factor distinguishing different groups of people from each other. outsiders had no relationships with these owners.

Exchange relationships between groups or their representatives, exchange of surpluses of the natural economy, contractual relationships connected with this exchange; in fact, these can be the only elements linking individuals with one another. [1]

It would seem that nothing could be simpler: the less that exchange is developed and the less the role of the market, the more private property atomizes people, the more it is a relationship “between a man and a thing”, and the more it is the law of things. On the other hand, the same author concludes, “capitalist private property ... does not ‘atomize’ people, but strongly ‘unites’ them, and enchains the workers if not to an individual capitalist, then at least to capitalists as a group”. From this he concludes that “the difference between the law of things and the law of obligations, in particular in the form which bourgeois jurisprudence gives it, corresponds not to the capitalist system, but to the structure of the simple natural economy”. This is an example of an extremely simplistic analysis – reputedly attributed to Marx, but in fact made by Renner.

Goikhbarg entirely fails to realize the dialectical possibility that in atomizing people, private property makes its appearance by uniting them through exchange, through the market, according to the extent of the disappearance of the natural economy and its replacement with a commodity-money economy. However, in one of Lenin’s earliest works, we find not only a clear understanding of the dialectic of private property, but also a correspondingly sharp formulation of it. Objecting to Mikhailovsky on the question of the nature of the right of inheritance, Lenin writes:

In fact, the institution of inheritance already presupposes private property and the latter arises only with the appearance of exchange [our italics, E.P. ] The source of this was the specific nature of social labour and the alienation of commodities on the market which were already appearing. So long, however, as all the members of the primitive American Indian tribe jointly produced all their necessary products, private property was impossible. When the division of labour penetrated the tribe, and its members individually began to engage in the production of an article and to sell it on the market, then the institution of private property appeared as the expression of this material individualization of commodity producers” [our italics, E.P. ]. [2]

The matter is therefore by no means so simple. The materialist nature of private property “isolating people” appears on the scene only when instead of the simple relation “between a man and a thing” (natural economy), a contractual relation among people emerges, a relation of exchange (commodity-money economy). The contradiction between the law of things and the law of obligations turns out to be, according to the dialectic, contained in the single shell in which they jointly developed, which to a certain extent appears as nothing other than the contradiction between “the social nature of means of production and the private nature of appropriation” translated into legal language.

If the strictly materialist character of property “isolating” people was an attribute of the closed natural economy, it would follow from this that, for example, feudal ownership of land must have been more exclusive (excluding others, strangers) than bourgeois ownership. But, alas, this flatly contradicts historical facts. Listen to what one eminent historian of the civil legislation of the French Revolution says in this respect. This is how Sagnac characterizes the land relationships of pre-revolutionary France:

A right of ownership does not belong to only one person, as in the Roman Empire; the different rights of which it consists, instead of being collected in one bundle, are separated. On the one hand, the right of direct possession remains in the grantor; on the other hand, after the right of use has passed to the person to whom this land is granted, then, because of centuries of evolution, it is considered not as a simple right of use but as a right of ownerships. [3]

Thus, relationships that were semi-natural corresponded, so to speak, to the absence of a clearly distinct right to an object “gathered in one bundle”. But this is still not all. In the same Sagnac we read further:

If land belonged both to the lessee and lessor, in fact or in theory, then it also belonged in the general sense to all people ... as soon as the harvest was collected the land became common to all. Poor people could go there, collect the fallen ears which they used for cows’ litter, for the roofing of homes or for heating the hearth ... afterwards each could pasture his cow and sheep on the unfenced lands; this was a free pasture. Certain customs allow owners to enclose only a small part of their estate so as to give the poor the possibility of pasturing their cows or goats. [4]

These facts were not of course first discovered by Sagnac. They were long known and characterized, among others, even by Marxists, as survivals of tribal property which were preserved in fact by the natural form of the economy. On the contrary, enclosure-the symbol of an exclusive material right-was intensified by the development of a commodity-money economy, and by the transition from feudal to capitalist exploitation. just consider the chapter in Das Kapital on primitive accumulation. The French Revolution effected a decree punishing the mere proposal of an agrarian (reform) law (i.e. division of the land) with death. At the same time strict decrees were adopted on the protection of land boundaries. Thus, the development of the market – the development of commodity-capitalist relations – leads precisely to the situation whereby private property more and more clearly reflects its exclusive nature as a relationship “between man and an object”. This is despite, or more accurately because of, the fact that the natural diversity of objects gives way to their impersonal expression in the form of a universal monetary equivalent. Property obtains a more perfect materialist character, then, with the freedom of appropriation and alienation. Land ownership obtains a fully materialist character when the land becomes “immobile”, i.e. an object of exchange which is distinct from other objects – an object only by the fact that it cannot be transferred from place to place. In other words, the material character of property corresponds not to natural-economic relationships but in fact to the relationships of commodity-capitalist society. And accordingly, contrasting the law of things with the law of obligations, it in no way loses its meaning in the transition from the natural economy to the commodity-money economy. But, on the contrary, for the first time it obtains its full meaning.

The same must also be said about the relationship between the exploited and the exploiter. Here also, the process of development is not as simple and one-sided as Goikhbarg depicts it. Precisely because the feudal economy was basically a natural one, feudal ownership of land could not adopt the perfected form of an exclusive right to an object. The existence of peasant allotments – which destroyed this exclusivity – was also in fact an instrument of exploitation:

in order to obtain an income (i.e. surplus product) the serf-owning landlord must have on his land a peasant who possesses an allotment, implements and livestock. A landless, horseless, non-farming peasant is useless as an object of feudal exploitation. [5]

But it was indeed from this that the enserfment of the peasant derived:

the peasant who was allotted land must be personally dependent upon the landlord, because, having land, he will not perform labour for his lord except by coercion. The economic system here engenders non-economic coercion, serfdom, legal dependence, lack of full rights etc. [6]

Thus, we see that property in a semi-natural economy not only “isolates”, as Goikhbarg thinks, but also very strongly binds – “attaches” – people, in the given case peasants, not only to the class of estate owners, but also to each individual estate owner. “On the contrary, ‘ideal’ capitalism is the full freedom to contract in the free market-for the owner and proletarian.” [7] The power of money appears most clearly in the contradiction between the legal freedom of the parties in the market and the actual power of capital, and it forms the structure of the bourgeois state in contrast to the feudal state.

Of course, one may object that all this is nothing new, just the ABCs of Marxism. In particular, the difference between the forms of feudal and capitalist exploitation, and the difference between the derivative forms of state, are sufficiently elucidated by Marx himself in the second part of Volume III of Das Kapital . Lenin’s formulation on this particular point merely repeats Marx. But it is all the more unforgivable to disregard these truths when they are elementary and have been well-known for a long time. This is especially so if, in the light of these truths, a picture of the development of law emerges which is much more complex than the one presented to us as the latest conclusions of Marxism.

From this small example we can see that it is in fact much easier to “criticize this [i.e. legal – E.P. ] mythology than to explain it from the economic relationships which engender it”. [8]

Lenin’s incomparable dialectic nowhere appears with such force, perhaps, as in problems of law. It is particularly striking, since one is compelled to compare it with the wretched formalism and fruitless scholasticism which usually flourishes here. We have in mind not only the theoretical analysis of the legal superstructure, in which Lenin appears as a true follower of Marx, but also Vladimir Ilich’s practical position in this area. Here we also encounter striking examples of the purely Leninist dialectic. It is sufficient to observe in several specific cases the role that Lenin attributed to the legal form. He always did this by taking full account of the concrete historical situation, the relationship between the forces of the struggling classes etc. to realize that both the fetishism of the legal form and its complete opposite the failure to grasp the real significance that one or another legal form may have at a given stage were equally foreign to Vladimir Ilich.

The struggle to overthrow and unmask the legalistic fetish of the system, against which the revolutionary struggle is conducted, is a quality of every revolutionary. This is obvious. Without this quality, the revolutionary is not a revolutionary. But, for the petit bourgeois revolutionary the very denial of legality is turned into a kind of fetish, obedience to which supplants both the sober calculation of the forces and conditions of struggle and the ability to use and strengthen even the most inconsequential victories in preparing for the next assault. The revolutionary nature of Leninist tactics never degenerated into the fetishist denial of legality; this was never a revolutionary phrase. On the contrary, at given historical stages, he firmly appealed to use those “legal opportunities” which the enemy, who was merely broken but not fully defeated, was forced to provide. Lenin knew not only how mercilessly to expose tsarist, bourgeois etc. legality, but also how to use it, where it was necessary and when it was necessary. He taught how to prepare the overthrow of the autocracy by using the very electoral law promulgated by the autocracy itself, and how to defend the first positions won by the world revolution of the proletariat, i.e. our victory in October 1917, by concluding a treaty with one of the imperialist states (the Peace of Brest). His incomparable political instinct unerringly guided him to an understanding of the limits within which it was fully possible to use the legal form imposed by the course of the struggle. Lenin brilliantly took into consideration the fact that the legality which our enemy imposes upon us is re-imposed on him by the logic of events. The Stolypin regime, however much it wanted, could not confine the class struggle in Russia inside those limits within which it was conducted before the 1905 revolution; the German imperialists, whatever their subjective dislike of the Soviet revolution, were compelled by the force of the general international situation to conclude a treaty with the Soviet government.

Lenin frequently characterized this use of legality as dirty, thankless work (his comparison of the tsarist Duma with “dirty bread” is famous), but it was necessary to know how to do this work in a certain type of situation, and to put aside the kind of revolutionary fastidiousness which acknowledged only the “dramatic” methods of struggle.

During the years of reaction (1907-1910), the Bolsheviks, compared with other defeated opposition and revolutionary parties, “conducted the most orderly retreat with the least damage to their army”, “with the nucleus of their party best preserved, with the fewest and least harmful divisions, and with the least demoralization” etc. Lenin explained this primarily by the fact that the Bolsheviks “ruthlessly exposed and drove out the revolutionary phrasemongers who refused to understand that it was necessary to retreat, that it was necessary to learn how to work legally in the most reactionary parliaments, in the most reactionary professional, cooperative and similar organizations”. [9]

Such major examples of Leninist strategy as the use of “legal opportunities”, or the Brest Peace, are sufficiently well known and have been more or less studied from the perspective of the political lessons which they contain. But until now little attention has been paid to the fact that both cases demonstrate recognition of the real significance of a type of legal form which is used in a specific situation, and as a well-known and very necessary method of struggle.

And Lenin attacked those revolutionaries who, consoling themselves with a revolutionary phrase, showed a lack of willingness or lack of ability to learn how to apply this method of struggle in practice.

It is remarkable that this tendency is observed in Lenin, not just on a large scale and in the major political struggles which he conducted, but also in minor conflicts of an everyday character with which he happened to be involved. Always remaining deeply committed to principle, Lenin nevertheless did not refuse to apply those concrete methods of struggle which at a given point happened to be the only possible way to achieve a desired result – even though the method was, for example, an appeal to a tsarist court.

Here one must recall an episode from Lenin’s life told by Elizarov soon after the death of Vladimir Ilich. The situation was that Vladimir Ilich, who at the time was still living in Samara, wanted to teach a lesson to a high-handed profiteer, a purveyor of transportation, who arbitrarily detained passengers who used the services of boatmen to cross the river rather than his ferry. He submitted a complaint, despite all the efforts of the head of the former district council (on behalf of the profiteer, naturally) to exhaust the indefatigable complainant by dragging out the hearing of the case; finally, a guilty verdict was obtained.

In this episode it is not only important for us that Lenin displayed in a minor matter the same stubbornness, iron will and firmness for which he was known in major matters. It was important that he knew, when he wanted to and when he found it necessary, how to set into motion even this method of struggle-he appealed to the tsarist court to teach the petty tyrant a lesson in that particular matter and to protect the interests of the poor boatmen. This would not have been surprising if Lenin had belonged to that type of “social activist”, an outstanding representative of which was, for instance, V.G. Korolenko. For them, such a struggle with the semi-serf Asiatic arbitrariness of the estate-owner state “in the name of legality” and strictly by legal means-was a sort of banner. No one mocked these people more caustically than Lenin. But this indeed proves that Lenin was a master of this type of struggle if he could not get the result he sought by, so to speak, taking a partisan position at the head of the struggle which he was conducting against autocratic arbitrariness and capitalist exploitation. Why, probably 99% of our good revolutionaries would have simply wrung their hands in this particular case and said, “It is not worth being involved”. And, of course, in so doing this would have reflected not their commitment to principle as revolutionaries, but simply a lack of knowledge of what had to be done and that it was necessary to act as a lawyer; and also, a lack of willingness because they were fastidious. What could be more favourable for a revolutionary than to go to court and, moreover, to appear before the head of local government. But Lenin was not an idle dreamer; he knew how to do dirty work where it was necessary. It is true in this case that it was also possible to construct an argument for the expediency of the route undertaken by Vladimir Ilich. Was it worthwhile, in fact, to have spent time and energy going to court with some individual profiteer? But this is another example where what is debatable is not the question of expediency, but the question of principle: should a revolutionary seek the support of the Crown’s court? A certain individual who managed the Knowledge Publishing House committed a violation and was, therefore, subject to the threat of a law-suit. In Lenin’s correspondence with Gorky the question is considered, what practical steps should be taken? Should one appeal to the tsarist court; was this permissible? Obviously, the orthodox intellectual outlook, the fear of dirtying the clean clothing of the revolutionary by turning to the tsarist court, the fastidious anarchist relationship to courts in general, and, most of all, the usual legal impotence, the lack of knowledge of “how this is done” – all these are arrayed against such a means of action. Lenin energetically criticized this combination of visible and hidden motives: “With respect to P., I am for the court. There is no reason to stand upon ceremony. Sentimentality would be unforgivable. Socialists are by no means against the Crown’s court. We are for the use of legality. Marx and Bebel turned to the Crown’s court even against their socialist opponents. It is necessary to know how to do this, and it is necessary to do it.”

And not being satisfied with this avalanche, Vladimir Ilich again “presses” energetically: “P. must be sued and with no holds barred . If you are criticized for this – spit in the faces of the critics. To criticize would be hypocritical.” [10]

It is not known what happened to this P., and it seems that this case did not go to court. But it appears that were the matter up to Vladimir Ilich, P. would have been sued “without reservation”.

Indeed it is this aspect of Vladimir Ilich which must be compared with this firm appeal-already another matter, in the situation of the Soviet state – to struggle against the violation of discipline, omissions, corruption and outrages; to struggle firmly, bringing it inevitably to an end, to court, to punishment. “How are officials penalized who have favored local conditions to the detriment of the centre and in violation of orders from the centre? What are the names of those penalized? Is the frequency of these violations diminishing? Have the penalties been increased, and if so to what?” [11] And further: “We must reorganize the Workers’ and Peasants’ Inspectorate by calling non-Party members to account both through this Inspectorate and also outside it through judicial prosecution [our italics – E.P. ].” [12] And also from the same order: “On measures of struggle with thieves: are they being held criminally accountable? The administration? The factory and plant committees (for insufficient struggle with theft)?” [13]

At the same time Lenin teaches anyone who points out a shortcoming of the Soviet mechanism that they must contribute to the struggle with all the methods provided by Soviet legality. Once a case is begun, bring it to an end, using all Soviet and Party channels. Do not be dissuaded by the fact that you have suffered failure at first, do not be dissuaded by the fact that you do not know where to turn. Everyone is obliged to know where and how to complain about an improper decision, and everyone is obliged to become a legally literate Soviet citizen.

The knowledge of how to conduct a struggle on “legal ground”, which in the pre-revolutionary situation did not and could not have broad significance, in principle has a very different meaning after the October period. Under autocracy and under capitalism it was impossible to struggle with the legal impotence and juridic illiteracy of the masses, without conducting a revolutionary struggle against autocracy and against capital: this impotence is but a partial phenomenon of the general subjugation for whose maintenance tsarist and bourgeois legality existed. But after the conquest of power by the proletariat, this struggle has the highest priority as one of the tasks of cultural re-education, as a precondition for the construction of socialism. Therefore, Lenin’s works from the Soviet period are simultaneously “anti-legal propaganda”, i.e. a campaign against bourgeois legal ideology, and an appeal to struggle and to eliminate legal illiteracy and impotence:

To the extent that the basic task of power becomes not military subjugation but rule the typical feature of subjugation and coercion will become not instant execution, but the court. And in this respect, after October 25, 1917, the revolutionary masses set forth on the correct path, and they have shown the viability of the revolution by beginning to set up the workers’ and peasants’ courts even before any decrees were issued on the dissolution of the bourgeois-democratic judicial apparatus, But our people’s and revolutionary courts are exceptionally and unbelievably weak. One senses that the popular feeling that these courts are governmental and alien-an attitude inherited from the yoke of the estate owners and bourgeoisie has still not yet been finally destroyed. There is not a sufficient awareness of the fact that the court is an agency of the power of the proletariat and of the poorest peasant, and that the court is an educational weapon for discipline. [14]

The petit bourgeois revolutionary, rejecting the use of the legal method of struggle, may consider himself an arch-leftist, as for example the extreme left Social Revolutionaries considered themselves when they disregarded the example of the Bolsheviks and called for a boycott of the Third State Duma. In fact they were simply paying their respects to a revolutionary phrase. But these gentlemen did not simply reject the outdated legality of the old regime: they adopted revolutionary struggle exclusively as a struggle for a new legality. Thus, formal legality still remains a fetish for them. They proceed not from the interest of the victorious class but from abstract principles; they cannot imagine that the policy of the proletariat (which has taken power and held on to it through a cruel civil war) is only the form of the establishment of a new type of legality which rests upon a correspondingly codified law. It is wen known that the left Social Revolutionary jurists, on the day after they entered into the structure of the Soviet government, were busy drafting “a criminal code of the Revolution”.

No one knew how to castigate the musty and reactionary formal juridic approach to questions of the revolutionary class struggle as well as Lenin. The words of Bebel were not in vain: “the jurists are the most reactionary people on earth” – this was the favourite expression used by Vladimir Ilich. It is sufficient to remember how he attacked Kautsky when the latter (with respect to the Soviet Constitution depriving the exploiters of the right to vote) posed the deep question: “Who is a capitalist in the legal sense?” It is sufficient to remember his rebuke to Kautsky over the question concerning the “illegal” expulsion of Social Revolutionaries and Mensheviks from the All-Union Central Executive Committee, a rebuke revealing all the idiocy of legal formalism in the face of the harsh facts of class struggle:

We, the Russian Bolsheviks, had first to promise the inviolability of Savinkovs and Co., the Lieberdans and Potresovs (“the activists”); then draw up a criminal code declaring “punishable” any participation in the Czechoslovakian counter-revolutionary war, or any alliance with the German imperialists against the, workers of one’s own country in the Ukraine or in Georgia; and only then , on the basis of the criminal code, would we have had the right according to “pure democracy” to exclude “certain persons” from the soviets. [15]

What after all, in the final analysis, is the Leninist theory of dictatorship if it is not a doctrine of revolutionary power which rejects formal legality? “The scientific concept of dictatorship means nothing less than power unlimited by anything, by any laws, unconstricted by absolute rules, and depending directly upon force.” [16] And in another place: “The revolutionary dictatorship of the proletariat is power won and maintained by the coercion of the bourgeoisie by the proletariat.” [17] But does not this power, confined by neither rules nor laws, signify the absence of all organizational power? For the ingrained bourgeois jurist there is no doubt that this is the case, because he does not see, and does not want to see, that bourgeois legality is the consistent practice of class domination formed over decades and centuries. This standard “legal” form of domination can be destroyed or shaken by extraordinary events, but this still by no means signifies the necessary elimination of the organizational domination of the bourgeoisie itself In accordance with an extraordinary situation it may adopt the form of an extraordinary and extra-legal dictatorship. And if, as we know, bourgeois legality developed gradually – because of the work of a whole legion of parliamentarians, scholars, jurists, judges and civil servants – then it would be absurd to demand the same legal perfection and legality from proletarian power born yesterday and having to defend its very existence with weapons. Legality is not an empty sack that can be filled with a new class content. But it is indeed in this way that Kautsky imagines the matter. “This ‘serious scholar’ allows the English bourgeoisie centuries to construct and develop a new (for the Middle Ages) bourgeois constitution, but this representative of lackey science does not give us, the workers and peasants of Russia, enough time. From us he demands a constitution worked out to the letter in a few months.” [18] The revolutionary and Marxist approach to problems of law requires, above all, an evaluation of the basic class tendencies of the upheaval taking place. But Kautsky is not at all interested in this. He is disturbed by the fact that, in depriving capitalists of the right to vote, our constitution therefore allows “arbitrariness”. Here is Lenin’s truly crushing answer to these pearls of formal-legal blockheadedness:

when in the course of centuries or decades all the bourgeois and the majority of the reactionary jurists of the capitalist countries developed detailed rules-wrote dozens and hundreds of volumes of laws and explanations of laws; oppressed the workers; enchained the poor; and placed thousands of cavils and obstructions in the path of any simple worker-then Mr. Kautsky and the bourgeois liberals do not detect “arbitrariness” here! Here, there is “order” and “legality” ... but when for the first time in history the working and exploited classes ... created their own soviets, called to the task of political construction those classes that the bourgeoisie had subjugated, beaten and deadened; and began themselves to build a new proletarian state, standing amidst the dust of wild battle and in the fire of civil war, to outline the basic principles of a state without exploiters-then all the scoundrels of the bourgeoisie, the whole band of vampires, with their echo, Kautsky, began to shout about “arbitrariness”. [19]

The bourgeois revolutionaries – the Jacobins – in clearing the way for capitalism also knew how to use the weapon of dictatorship mercilessly, but they could interpret their historical actions only in the false ideological form of struggling for the eternal bases of freedom and equality. They acted as daring revolutionary politicians, but they were thinking like jurists and moralists. They decided, for the sake of saving the bourgeois-democratic Jacobin revolution, to trample upon formal legality, but they did this in the name of freedom, in the name of the absolute rights of man and the, citizen.

For Lenin, as a follower of Marx, no social ideals existed that could not be explained in terms of the material conditions of existence, and which in class society did not have a class character. The idea of freedom and equality, the idea of the eternal and inalienable rights of man is the natural law ideal. This is the lone source of support for the bourgeois jurist who is compelled, in a revolutionary period and in the name of his class interest, to abandon the ground of formal legality. This ideal arises in connection with a specific material social content which is rooted in the conditions of production.

In one of his first works, Lenin reminds our populists of this: “Marx repeatedly points out”, he writes, “how at the foundation of civil equality, freedom of contract, and similar principles of the Rechtsstaat , there lie the relationships between commodity producers. ” [20] Lenin begins his theses on the national and colonial question with the same materialist criticism of the ideology of equality.

Bourgeois democracy is by its very nature characterized by an abstract or formal statement of the question of equality in general, including that of national equality. Under the appearance of the universal equality of the human personality, bourgeois democracy proclaims the formal or legal equality of the owner and the proletarian, of the exploiter and the exploited, thereby leading the subjugated classes into the greatest deception. The idea of equality itself, being a reflection of the relationships of commodity production [our italics – E.P. ] is transformed by the bourgeoisie into a weapon of struggle to oppose the liquidation of classes, under the pretext of the supposedly absolute equality of human personalities. The real meaning of the demand for equality consists only in the demand for the elimination of classes. [21]

There is no harm here in recalling that these elementary propositions of Marxist criticism were by no means so generally accepted among the individuals who thought they were Marx’s successors, as might seem at first glance. For certain representatives of the Menshevik camp “the absolute value of the legal principles of democracy” was not subject to any doubt even at the time when they seriously considered themselves representatives of revolutionary Marxism. Why, even at the Second Congress, the delegate Egorov “hissed” Plekhanov, when the latter asserted that the situation is hypothetically imaginable when we, Social Democrats, might express ourselves against the universal right to vote. And it is interesting that Martov, although not aligned with the champions of “absolute principles”, nevertheless later (at the Congress of the League of Social Democrats Abroad) considered it necessary to offer a reservation on just this point; that Plekhanov “could avoid the dissatisfaction of some of the delegates, if he were to add that of course one must not imagine such a tragic state of affairs as that in which the proletariat, in order to secure its victory, would be forced to trample upon such political rights as the freedom of the press”. The whole essence of Menshevism lies in this reservation. On the one hand, being Marxist, it is inconvenient to come forward as a champion of eternal and classless principles of formal democracy; on the other hand, the real petit bourgeois nature of Menshevismin fact moves along these “classless” lines: the result is a truly tragic dissension in which they attempt to save themselves from this contradiction in the fond hope that “of course, one cannot imagine such a tragic state of affairs”. But what can be done if this “tragic state of affairs”, despite the Menshevik hopes, nevertheless becomes an historical reality? We already have the answer to this question; it is provided by the consistent political practice of Menshevism, which was nothing other than subservience to the fetish of bourgeois democracy and an intensified struggle against the dictatorship of the proletariat.

Marxist theory relegates legal forms to a secondary and even tertiary place in social development. Economic relations develop on the basis of the specific condition of the social productive forces and are decisive in the final analysis; the direct lever pushing forward the march of history is the class, i.e. political struggle, which itself is nothing other than “the concentrated expression of economics”; as far as the legal formulation of economic relations and political facts is concerned, this plays a secondary and subservient role. Marxist theory, generally speaking, has therefore given the problems of law comparatively little attention. On the contrary, bourgeois scholarship has developed this external formal side of social relationships with particular enthusiasm, for, in addition to other reasons, this gives its theorists the possibility of completely avoiding consideration of the problems of economic inequality (these are troubling because of their “materialism”). jurisprudence is therefore a safe haven. This aspect of the matter is pointed out, incidentally, by Vladimir Ilich in his article with respect to the last (pre-war) scholarly work of Peter Struve. “The modern bourgeoisie”, he wrote, “are so frightened by this step [which political economy has made in the person of Marx – E.P. ], are so disturbed by the ‘laws’ of contemporary economic evolution, which are so obvious and imposing, that they and their ideologists are ready to discard all the classics and every kind of law if only to place ... all of them ... in the archive of jurisprudence ... along with ... social inequality.” [22] In another place, characterizing this tendency of bourgeois scholarship, Vladimir Ilich formulates the secret wishes of the bourgeois theorists: “Let political economy be occupied with truisms, with scholasticism and with the senseless struggle for facts, and let the question of ‘social inequalities’ recede to the safer area of socio-legal discussions; where it is easier ‘to escape’ from these troubling questions.” [23]

However, the correct Marxist analysis of the legal form as a superstructure dependent upon the base may, in certain circumstances, be turned into a caricature of Marxism, into a lifeless and determinist view. Here, the superstructure emerges “by itself” upon a given base, and form appears “by itself” at a certain level of development of the given material content. Increasing emphasis upon the regularity of social development is imperceptibly transformed into the assertion of a certain social automatism, or, as expressed in our militant political jargon, into “tailism”. Lenin, being a fierce opponent of every sort of tailism, could not of course fail to combat these types of views and theories, and to expose them as deviations from Marxism. The first type of fatalist distortion of Marxism was made, as is well known, by the “economists”. All class struggle, they affirmed, is political struggle, and so they concluded that the political potential of working class struggle is an automatic process. The Marxist doctrine that political forms, and even forms of political struggle are inevitably engendered by their economic content, is turned by the “economists” into justifying and glorifying every sort of backwardness in the workers’ movement. The Mensheviks formally repeated the same mistake, beginning with the propagation of tailism or organizational problems. “Content,” they announced, “(i.e. the content of the political struggle) is more important than form; programme and tactics are more important then organization.” Here the dispute is transferred, so to speak, to a level which interests us. The form about which they are speaking is the legal or constitutional formulation of the Party, in which the latter appears not only as the totality of like-minded political thinkers, but also as a formally unified whole, i.e. an aggregate of organizations. The external expression of unity is the hierarchy of Party institutions and the Party Charter. The struggle which Lenin led at the Second Congress, and to which his Steps was dedicated, was also the struggle for the necessity of a legally formulated party organization .

Here it is appropriate to note that Vladimir Ilich had available all the necessary data, not only for theorizing on law, but also for feeling himself fully assured about where law appears in its Practic function as a formal intermediary of a particular kind of social relationship. [24] These data, in the first place, were interpreted by the iron logic of thought characteristic of Vladimir Ilich. Being an incomparable dialectician and understanding the subordinate position of formal logic, Vladimir Ilich nevertheless gave it its deserved place. The dialectic was never turned into fogginess and confusion by him. On the contrary, he did not propose anything diffuse, undefined or confused. Each of his formulations was always thought out to the end; there is nothing excessive in it, nothing which reveals a lack of theoretical clarity that in such situations tries to shelter behind verbosity. A well-developed mind such as his is a necessary and a sufficient condition for being an extraordinary jurist. We recommend that anyone who doubts this read carefully, for example, Lenin’s criticism of Martov’s draft of the Party Charter in Steps . [25] The mastery with which Lenin exposes typical intellectual slovenliness, with respect to precise “legal” definitions, combined with lack of content, verbosity, pointless formalism and endless repetitions, speaks sufficiently for itself In particular, this is a clear example of the fact that Lenin’s criticism is directed against form; for by his very act of publishing Martov’s draft, his purpose was to show that a particular nuance of substance (in the sense of the negative relationship to centralism) – contrary to the affirmations of Martov – was not revealed in his draft of the charter written before the Congress.

The struggle at the Second Congress and after it, the debates on the first paragraph of the charter on centralism etc. ... all this had of course a certain political significance and political meaning, to be sure, revealed in full only later. But from the logical point of view the argument flowed on the level of a different approach to the nature of the charter or, in a broad sense, the legal formulation of our Party. The opponents of Lenin simply denied the possibility of a formulation under which the Party would have presented itself as something better defined than the totality of persons considering themselves, at any given moment, members of the Party. No rules, for instance, Axelrod said, can forbid circles of revolutionary youth and individual persons from calling themselves Social Democrats and even considering themselves part of the Party. Lenin easily revealed the absurdity of this argument:

to forbid one to call himself a Social Democrat is impossible and pointless , for this word expresses directly only a system of thoughts and not defined organizational relationships. To forbid certain circles and persons “to consider themselves part of the Party” is possible and necessary when these circles and persons are dangerous for the affairs of the Party, corrupt it and disorganize it. It would be comical to speak of the Party as a whole as a political quantity, if it could not “forbid by decree” a circle “to consider itself part” of the whole! And why then define the procedures and conditions for expulsion from the Party? [26]

To Lenin himself it appeared very early – and he emphasizes this in many places in his Steps – that the organizational opportunism of Axelrod, Martov and others is only the inheritance of the previous (not yet outlived) age of circlism, of the age when the Party grew from a “family circle”, without a formal character, without the subordination of the minority to the majority, without the subordination of the part to the whole. Lenin, more than anyone, understood the tremendous significance of revolutionary circlism, i.e. the close ideological and comradely welding of revolutionaries based upon unconditional faith in one another. Many of the best pages in his What is to be Done? are devoted to the clarification of this significance. But Lenin also understood that when the Party moves out into the broad arena of political struggle, it must supplement ideological unity with the character of external unity, it must put Party institutions in the place of the circle. Lenin understood that a party which was arrested in its development at the stage of the circle would not be in a position to fulfil those tasks designated in its programme. The circle connection, informal, without a charter, while it had great advantages, also had shortcomings that in the future would necessarily become unbearable. Customs that grew up at this period became an impediment to further growth. Lenin wrote:

To those who are accustomed to the loose dressing-gown and slippers of the Oblomov circle household, formal rules seem narrow, restrictive, irksome, petty and bureaucratic, a bond of serfdom and a fetter on the free process of the ideological struggle. Aristocratic anarchism cannot understand that formal rules are needed precisely in order to replace the narrow ties of the circle with the broad tie of the Party. It was unnecessary and impossible to formulate the internal tie of a circle or the ties between circles, for these ties rested on friendship or on a confidence for which no reason or motive had to be given. The Party bond cannot and must not rest on either of these; it must be founded on formal, bureaucratically worded rules (bureaucratic from the standpoint of the undisciplined intellectual), strict adherence to which can alone safeguard us from the wilfulness and caprice characteristic of the circles, and from the circle methods of in-fighting that go by the name of the “free process of the ideological struggle”. [27]

The sharp attacks of Lenin, as always, were explained by the fact that he clearly saw the next and the most necessary step that at any given moment must be made by the Party, and he violently attacked those who pushed the Party backward.

In answer to the announcement of the editorial board of the new Iskra that “trust is a delicate thing which cannot be hammered into the heart and the head”, Lenin noted:

When I was a member only of a circle ... I had the right to rely only upon undefined faith ... and when I became a member of the Party I did not have the right to rely only upon an undefined lack of faith ... I was obliged to motivate my “trust or mistrust” by a formal conclusion, i.e. by reference to one or another formally established procedures of our programme, tactics or rules; I was obliged to follow a formally prescribed path for the expression of distrust, for the conduct of those views or those desires which flowed from this distrust. [28]

One Step Forward, Two Steps Back , is a book that, in addition to all else, has profound educational significance. It teaches a serious responsible relationship to Party affairs and to Party organizations; it teaches not to confuse the political discussion which precedes the adoption of a specific decision with endless and futile intellectual discussions; the consideration of candidates at elections of officials of the Party with ordinary family considerations of how not to annoy someone; the Party with a group of friends. This book emphasizes the strict, formal, external side of a matter to which many of the revolutionaries of that time related carelessly. But Vladimir Ilich knew that “in its struggle for power the proletariat has no other weapon but organization ... that the proletariat can become and inevitably will become an invincible force only when its ideological unification, by the principles of Marxism, is consolidated by the material unity of an organization which will weld millions of toilers into an army of the working class” [29] , that “the objective-maximal ability of the proletariat to unite into a class will be realized by living people, will be realized in other ways than in definite forms of organization” [30] , that, accordingly, the founding and formalization (including the external-character aspect of this organization) is an important step forward in the history of the workers’ movement.

When, after the Second Congress, Lenin’s opponents had conducted a struggle against “bureaucratic formalism”, they constructed their argument on a deeper and, it seemed, more Marxist understanding of the course of historical development. Lenin, of course, did not think of concealing the fact that his organizational plan had a most definite political significance: to protect the Party from opportunism. Against this, his opponents from the Menshevik camp put forth the following weighty objection. “Opportunism”, they said, “is created by more complex, and defined by deeper causes than some paragraph of a charter.” (Trotsky)

“The problem is not”, Lenin replied, “that the paragraphs of the charter may create opportunism, but to forge with their help a more or less sharp instrument against opportunism.” The formulae proposed by Lenin, Trotsky further asserted, must be rejected, for historical definitions must correspond with the factual relationships. “Trotsky speaks again as an opportunist”, Lenin responded. “Actual relations are not dead, but live and are developing. Legal definitions may correspond to the progressive development of these relations but may also (if these definitions are bad) ‘correspond’ to regression or stagnancy.” “The latter”, added Vladimir Ilich, “is the case with Martov.” [31]

Opportunism on the question of organization was logically expressed in defending the primacy of “content” over form and in the placing of the programme and tactics before adoption of the charter, of “actual development” over “legal definitions”. Lenin reveals the full metaphysical nature of this contrast which fails to account for concrete historical conditions. That which is appropriate and correct in one stage of development becomes a crude mistake at another. Martov, speaking in defence of the old circle approach, tried to rely upon citations from the earlier works of Lenin, where he discussed “ideological influence” and the “struggle for influence”, and contrasted them with the “bureaucratic method of influencing with help of the Rules”, and the tendency to rely on authority which, purportedly, Lenin developed after the Second Congress. “Naive persons!” Lenin exclaims in this respect, “they have forgotten that formerly our Party was not a formally organized whole, but only the sum of separate groups, and therefore, no other relations except those of ideological influence were possible between these groups. Now we have become an organized Party and this implies the establishment of authority, the transformation of the power of ideas into the power of authority [and] the subordination of lower Party bodies to higher Party bodies. Why, it even makes one uncomfortable”, Lenin concludes, “to have to masticate such rudimentary ideas for the benefit of one’s old comrades.” [32] In this emphatic “now” is concentrated all the wisdom of the Leninist dialectic. He, so to speak, says to his opponents: you may, good gentlemen, affirm as much as you wish that content defines form, that tactical correctness is a necessary condition of organizational solidarity, that discipline in the Party depends in the final analysis on the authority of ideas etc., but now the time has come when it is necessary to make a step further, when it is necessary to act on the premises created for ideological struggle, when it is necessary to understand the content of political struggle at the next stage, moving into the new juridically finalized form of Party organization.

The work of Iskra [wrote Vladimir Ilich] and the whole matter of Party organization, the whole matter of the actual reconstruction of the Party, could not be considered finished without recognition by the whole Party and also of the formal confirmation of definite organizational ideas. The organizational character of the Party also had to fulfil this task. [33]

With respect to the comments of the Menshevik Iskra , Lenin venomously notes at another place:

Content is more important than form, and programme and tactics are more important than organization. Great and profound truths. A programme is indeed more important than tactics, tactics are more important than organizations. The alphabet is more important than etymology, etymology is more important than syntax-but what can be said of people, who having failed the examination in syntax, now put on airs and pride themselves that they have been held back in a lower class for another year? [34]

Lenin understands a formal and centralized organization as something real, and he is not willing to dissolve it into some sort of symbolism satisfying “spiritual unity”. “The adoption of a programme”, stated the Menshevik Iskra , “contributes more to the centralization of work than the adoption of rules.” “How this banality – palmed off as philosophy – smacks”, Lenin reacts, “of the spirit of the radical intelligentsia, and it is much closer to bourgeois decadence than to Social Democracy. Indeed in this famous phrase the word ‘centralization’ is understood in a sense which is very symbolic.” [35] It is characteristic that a fetishist relationship to the basis of formal democracy, which by that time was innate to Menshevism, did not prevent Martov and his adherents within the Party from placing their opinion (and the will of their circle) above the formal decision of the majority of the Congress. Martov even cast doubt on the procedures of elections as expressions of the will of the Party: “only by replacing the question of the social consciousness of the members of the Party and the socialist content of their work with the question of the ‘reliability’ of centres invested with strong power, may we reach the point of seeing in the act of the elections a specific expression of the will of Party.” [36] Lenin, in the opinion of the four editors of the old Iskra , “gives prominence, not to internal union, but to external, formal unity exercised and protected by purely mechanical methods, by the systematic subjugation of individual initiative and independent social action.” Mocking the worth of this document-which in fact recalls more a pre-revolutionary district council speech on reforms (“independent social action”), than a resolution on internal Party questions-Lenin continues: “What external, formal unity were they talking about here, our Party members who had just returned from a Party Congress, whose decisions they had solemnly proclaimed to be valid? Do they happen to know of any method of achieving unity in a Party organized on any lasting basis, except by a Party Congress?” [37] Lenin mercilessly dismantles the accusations of bureaucratic formalism and shows behind them are hidden only “an anarchist phrase and intellectual instability”. “You are a bureaucrat”, states Vladimir Ilich ironically, “because you were appointed by the Congress against my wishes; you are a formalist because you rely upon the formal decisions of the Congress, and not on my consent; you are acting in a grossly mechanical way because you cite the ‘mechanical’ majority at the Party Congress and disregard my wish to be co-opted; you are an autocrat, because you refuse to hand over the power to the snug little old band who insist on their ‘continuity’ as a circle-all the more because they do not like the explicit disapproval of this circle by the Congress.” [38]

Lenin firmly led the Party to a new stage, to the organizational “instrumentalization” of its political life, fighting its way free from those who pushed it back to the bygone stage of ideological struggle and demarcation. “Unity on questions of programme and tactics is an essential, but still insufficient condition, for Party unity and for the centralization of Party work”, explained Vladimir Ilich to his new- Iskra opponents. At once, in parentheses, he exclaims with weariness: “For heaven’s sake, what rudimentaries have to be repeated nowadays, when all concepts have been confused!” “This latter”, he continues, “requires, in addition, a unity of organization which, in a Party that has grown to be anything more than a mere family circle, is inconceivable without formal rules, without the subordination of the minority to the majority, of the part to the whole. As long as there was no unity on the fundamental questions of programme and tactics, we bluntly admitted that we were living in a period of disunity and the circle spirit; we bluntly declared that lines of demarcation must be drawn before we could unite; we did not even talk of the forms of a joint organization, but exclusively discussed the new (at that time they really were new) questions of how to fight opportunism on programme and tactics. When, as we all agreed, this fight had already ensured a sufficient degree of unity – as formulated in the Party’s resolution on tactics – we had to take the next step, and by common consent, we did take it, working out the forms of a united organization that would merge all the circles together. But now these forms have been half-destroyed and we have regressed to anarchist conduct, to anarchist phrasemongering, and to the revival of a circle in place of a Party editorial board. And this regression is justified on the grounds that the alphabet is more helpful to literate speech than a knowledge of syntax!” [39]

But for opponents from the new Iskra the Leninist “syntax” was unachievable, and they continued to regress towards the “alphabet”. “Discipline”, wrote Trotsky,” is sensible only up to the point when it assures the possibility of struggling for that which you consider right, and in the name of that for which you impose discipline upon yourself. But when attention is called in a certain way to the perspective ‘of denial of a right’, i.e. denial of the right to struggle for ideological influence, then the question of its existence is, for him, transformed from a Rechtsfrage (question of law) into a Machtfrage (question of force).” How can one fail to compare Trotsky’s abstract opinions after the Second Congress – on the theme of the inevitability of dissidence – with his concrete statement in 1908-1914 for “unity” with those liquidators who had placed themselves both ideologically and organizationally outside the Party? To popularize the harmfulness of formal unity, after Iskra had laid the basis in a 3-year struggle for both programmatic and tactical unity, and to raise a cry against dissidence and dissent when a whole political chasm had opened between the parties and the liquidators – this is a rare and, one may say, classical example of the complete absence of a dialectical approach to the question.

The mistake of the “economists” and the Mensheviks was, as we saw, the same. It consisted in the failure to understand the concrete forms of implementing the proletarian class struggle. Moreover, in both situations, their distortion of Marxism was presented as an alleged deepening of Marxist analysis, as the transfer of attention from the “external” (from “form”) to the very “essence”. Much later Vladimir Ilich had to fight with the same kind of mistake at the time of the discussion of the “right to self-determination”.

His opponents, including the Polish comrades, having cast doubt on this point of our programme, similarly tried to bypass the specific requirement of a political and legal nature, the requirement put forth by the very course of the liberation struggle of the proletariat, under the pretext that “in essence” no “self-determination” could exist under capitalism, and that under socialism it was not necessary. The analogy between this line of argument and the arguments of the “economists” was noted by Vladimir Ilich himself In his answer to the argument that “socialism eliminates all national subjugation just as it eliminates the class interest which produced it”, Lenin notes: “Why is there this discussion of the economic premises of the elimination of oppression? They have been known for a long time and are indisputable. The dispute is related to one of the forms of political oppression, namely, the forceful domination of one nation by the state of another nation. This is simply an attempt to avoid political questions.” [40] And further: “indeed our opponents have even attempted to avoid whatever is debatable ... They wish to think neither about borders, nor in general about the state. This is a sort of ‘imperialist’ economism, similar to the old ‘economism’ of 1894-1902 which argued that capitalism is victorious, therefore there is no point in political questions.” [41] Such a political theory is fundamentally hostile to Marxism.

Returning again to this analogy, Lenin writes that “the old economists” have turned Marxism into a caricature and have taught the workers that only “economics” is important for Marxists. The new “economists” “think”, it seems, either that the democratic state of victorious socialism will exist without borders (like a complex of “sensations” without matter), or that the borders will be defined only by the needs of production. In fact these borders will be determined democratically, i.e. according to the will and “sympathies of the population”. [42] On the other hand, arguments that the right of nations to self-determination is unrealizable under capitalism and that, therefore , one must give it up, are, as Lenin shows, a concession to reformism. “ Objectively their [i.e. the Polish comrades’] phrases on impossibility are opportunist, for they silently assume [that self-determination] is impossible without a series of revolutions, as unrealizable under imperialism as under democracy.” [43]

Lenin’s political acumen in this dispute was frequently explained and commented upon in later Marxist literature. But no one, so far as we know, has noted the fact that logically the position of Rosa Luxemburg – and those holding views like hers (among whom spoke out even clear opportunists such as Semkovsky and the Bundist Liebman) – may be, incidentally, characterized as the complete rejection of the legal form and the complete lack of understanding of its specific features. Begin with the fact that Comrade Lenin had constantly and firmly to explain to his opponents the difference between “the right to secession” and secession itself Rosa Luxemburg, and indeed others, suppose that recognition of the “right of secession” signifies obligatory support of every concrete demand for secession, and that it inherently includes “the encouragement of separatism”. Lenin had to explain this lack of understanding with the elementary example of the “right to divorce”. “To blame the champions of self-determination (i.e. of the freedom of secession, of encouraging separatism), is just as stupid and just as hypocritical as to blame the champions of freedom of divorce for encouraging the destruction of family ties.” [44]

It was absolutely incomprehensible to the opponents of Lenin that the struggle against national oppression should find its most direct and appropriate expression in the interest of the proletariat in the demand for the legal freedom of secession, i.e. in technical language, in the struggle for the recognition of the corresponding “subjective right”. The discussion relates precisely to the recognition that each nation has the “subjective right” to form an independent state. Lenin explains this by comparing it with the slogan demanding a federal or autonomous state structure:

It is not hard to see that under the right to national self-determination it is impossible for the Social Democrat to understand either federation or autonomy. Abstractly speaking, both are subsumed by self-determination. The right to federation is completely meaningless, because federation is a bilateral contract. It goes without saying that Marxists cannot defend federalism in general in their programme. With respect to autonomy, Marxists defend not the “right to autonomy”, but autonomy itself as a universal principle of democratic states which have a mixed national composition and sharp differences in geographical and other factors. Therefore, to recognize “the right to national autonomy” would be just as meaningless as to recognize “the right of nations to federation”. [45]

Such a statement of the question (recognition of the right to self-determination without obligatory support of each concrete demand for secession) was definitely not mastered by Lenin’s opponents. It seemed “metaphysical” to them, deprived of concrete political content, and without practical indications for daily policy. The Bundist Liebman simply declared the right to self-determination “a fashionable expression” whose meaning was surrounded by a haze.

The thought that this essentially bourgeois-democratic (and therefore inevitably formal and abstract) slogan could be both a battle cry of the proletariat against the semi-feudal and bourgeois materialist reaction, but could also play a positive role even after the victory of socialism, absolutely failed to find a place in the consciousness of people sincerely presenting themselves as consistent Marxists. It seemed to them that the empty legal abstraction of equality of right definitely had to be replaced by something real and practical. Lenin splendidly exposed their mistake:

To demand an answer “yes or no” to the question of secession in the case of every nation may seem a requirement that is very “practical”. But in reality it is absurd, theoretically metaphysical, and in practice leaves the proletariat subordinate to the policy of the bourgeoisie ...

It is theoretically impossible to guarantee in advance whether the secession of a given nation, or its equal legal position with another nation, will culminate in a bourgeois-democratic revolution. It is important in both cases to ensure the development of the proletariat; the bourgeoisie impede this development and give precedence to “national” development. Therefore, the proletariat is limited to the “negative” demand for the recognition of the right to self-determination, which is not guaranteed to any one nation. The whole task of the proletariat on the national question “is not practical for the national bourgeoisie of each nation, because the proletariat demands an ‘abstract’ equal right, an absence in principle of even the slightest privilege, because it is opposed to all nationalism”. [46]

Lenin understood what his opponents failed to understand: that the “abstract”, “negative” demand of formal equal rights was, in a given historical conjuncture, simultaneously a revolutionary and revolutionizing slogan, and also the best method of strengthening the class solidarity of the proletariat and of protecting it from infection by bourgeois-national egoism. In fact, in the concrete conjuncture in which the argument occurred (i.e. on the eve of the Imperialist War and at its height, and thus on the eve of the Russian Revolution), to deny the right to self-determination by proceeding from the fact that this was just a slogan of formal democracy – and that Marxists are obliged to expose this formal democracy in every way – would have been. “to play into the hands not only of the bourgeoisie but of feudal and absolutist national oppression”. Lenin understood that at any stage of development, the demand for the abstract formal equality of right is a revolutionary demand which destroys the semi-feudal monarchy and in the first instance, Russian absolutism.

But then 1920 arrived. In Russia the October Revolution had already occurred and Soviet power was confirmed; the next task was to struggle for the dictatorship of the proletariat on a world scale. The imperialist bourgeoisie and it minions firmly tried to mask their policy of oppression and robbery of conquered and colonial countries by empty “Wilsonian” phrases on the equality of peoples, on the equal rights of nations etc. Under these conditions a simple repetition of the old slogans would have been meaningless. The basic task became a struggle against bourgeois democracy, and the exposure of its lies and falsehoods. Lenin wrote his famous theses on the national question for the Second Congress of the Comintern, and they begin with the above-cited exposure of the bourgeois democratic idea of formal legal equality. The theses emphasized that “the Communist Party, as the conscious expression of the struggle of the proletariat for the overthrow of the yoke of the bourgeoisie, must not place abstract and formal principles at the apex of the national question: compare with the declaration reproduced above that the proletariat demands abstract equal rights” [our italics – E.P. ] First, it must consider the historical, concrete, and (above all) economic situation; second, the exact difference between the interests of the oppressed, exploited working classes and the general concept of the national interest, which signifies the interests of the ruling class; third, the clear distinction between nations that are oppressed, dependent and lacking in equal rights, and nations that are oppressors and exploiters. These distinctions must be counterweights to the bourgeois democratic lie that masks the enslavement of the great mass of the population of the earth by an insignificant minority of the rich advanced capitalist countries, an enslavement which is characteristic of the period of finance capital and imperialism. [47]

Bourgeois democratic slogans on the national question have lost their revolutionary quality. The defence of the “abstract” equality of rights was a halfway house.

In the area of internal state relations the national policy of the Comintern cannot be limited to the naked, formal and purely declarative recognition of the equal right of nations to which the bourgeois democrats limit themselves – it makes no difference whether they recognize themselves openly as such, or mask themselves in the guise of socialism. [48]

In turn a new task is created:

the task of transforming the dictatorship of the proletariat from a national dictatorship (i.e. existing in one country and incapable of determining world politics) into an international dictatorship (i.e. a dictatorship of the proletariat of at least several advanced countries capable of having a decisive influence on world politics). Petit bourgeois nationalism declares internationalism to be the recognition of the equal rights of nations, and it only preserves (not speaking of the purely verbal character of such a recognition) inviolable national egoism. However, proletarian nationalism demands, first, the subordination of the interest of the proletarian struggle in any one country to the interest of the struggle on the whole world scale; second, it demands the ability and readiness on, the part of those nations which have achieved victory over the bourgeoisie, to undertake great national sacrifices for the destruction of international capital. [49]

This was a new stage, a new situation, a new and higher level of struggle. And new priorities corresponded to it. The bourgeois-democratic stage had passed, and with it the formal legal demand for national self-determination – characteristic of this stage – lost its former significance. The slogan “overthrow the rule of the bourgeoisie on a world scale and set up the international dictatorship of the proletariat” became the immediate practical slogan.

Does this mean that national self-determination lost all significance; that it could be replaced with the “self-determination of the proletariat”? Certainly not. This would have been to ignore the presence of backward countries which had not passed through the stage of bourgeois-democratic national revolutions. The communist proletariat of advanced countries had to support these movements; with all its strength it had to struggle so that the accumulation of centuries of ill will and the distrust by backward people of the dominant nations – and of the proletariat of these nations – was overcome as quickly as possible. It was impossible to achieve this goal without proclaiming and conducting in practice the right of national self-determination. Moreover, even for a socialist society moving towards the elimination of classes the question of national self-determination still remains a real one, since although based on economics, socialism by no means consists solely of economics:

For the elimination of national subjugation, a necessary foundation is socialist production, but it is also necessary to have a democratic organization of the state, a democratic army etc., erected on this base. By transforming capitalism into socialism the proletariat creates the possibility of eliminating national subjugation. This possibility is transformed into reality ”only” – only upon the full establishment of democracy in all areas, the determination of borders according to “the sympathies of the population”, and the full freedom of secession. On this base, in its turn, the absolute elimination of the least national frictions and distrust develops in practice . The accelerated movement towards the integration of nations will be completed when the state withers away. [50]

We hope that in these few examples we have shown what rich material for the study of the revolutionary dialectical approach to questions of law is contained in the theoretical and political works of Lenin. We will consider our task fulfilled if we succeed in attracting the attention of comrades to this little-studied area.

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1. A.G. Goikhbarg, Fundamentals of the Law of Private Property (1924), Moscow, p 68.

2. V.I. Lenin, What the “Friends of the People” Are and How They Fight the Social Democrats (1894), LCW , vol.1, p.153.

3. P. Sagnac, La legislation civile de la Revolution francaise 1789-1804 (1898), Libraire Hachette, Paris, vol.I, p.2.

4. ibid. ; V.I. Lenin, The Agrarian Question in Russia at the End of the Nineteenth Century (1918), LCW , vol.15, p.84.

5. Note missing. – [ MIA ]

6. ibid. , pp.84-85.

7. ibid. , p.85.

8. A.G. Goikhbarg (1924), op. cit. , p.23.

9. V.I. Lenin, Left-Wing Communism: An Infantile Disorder (1920), LCW , vol.31, pp.35-36.

10. V.I. Lenin, Sochinenii , vol.1, p.135.

11. V.I. Lenin, Instructions of the Council of Labour and Defence to Local Soviet Bodies (1921), LCW , vol.32, p.387.

12. ibid. , p.389.

13. ibid. , p.394.

14. V.I. Lenin, Sochinenii , vol.25, pp.215-216.

15. V.I. Lenin, The Proletarian Revolution and the Renegade Kautsky (1918), LCW , vol.28, pp.276-277.

16. V.I. Lenin, A Contribution to the History of the Question of Dictatorship (1920), LCW , vol.31, p.353.

17. V.I. Lenin, The Proletarian Revolution and the Renegade Kautsky (1918), op. cit. , p.236.

18. ibid. , p.274.

19. ibid. , pp.274-275.

20. V.I. Lenin, What the “Friends of the People” Are and How They Fight the Social Democrats (1894), op. cit. , pp.149-150.

21. V.I. Lenin, Preliminary Draft Theses on the National and Colonial Questions (1920), LCW, vol.31, p.145.

22. V.I. Lenin, Sochinenii, vol.12, pt.2, p.388.

24. We make the reservation here, of course, that the formal-organizational problems of Party building may be classified as legal problems only in a conditional and relative sense. First, however, the charter operates just as formally as an intermediary for the political content of the activity of the Party, as law in the narrow and exact sense of the word operates as an intermediary for relations of production. Second, our Party charter – and no one can deny this – is now one of the elements in the state structure of the Union of Soviet Republics. From the additional perspective of its functional importance, it therefore merits classification as one of the subjects treated by jurisprudence.

25. V.I. Lenin, One Step Forward, Two Steps Back (1904), LCW , vol.7, pp.241-249.

26. ibid. , p.272.

27. ibid. , pp.392-393.

28. ibid. , pp.393-394.

29. ibid. , p.415.

30. V.I. Lenin, Sochinenii, vol.8, p.479.

31. V.I. Lenin, One Step Forward, Two Steps Back (1904), op. cit. p.275.

32. ibid. , p.367.

33. ibid. , p.336.

34. ibid. , p.386.

35. ibid. , p.387.

36. L. Martov, A State of Siege (1903), cf . LCW , vol.7, p.360.

37. V.I. Lenin, One Step Forward, Two Steps Back (1904), op. cit. p.362.

38. ibid. , p.363.

39. ibid. , pp.387-388.

40. V.I. Lenin, The Discussion on Self-Determination Summed Up (1916), LCW , vol.22, p.321.

41. ibid. , p.322.

42. ibid. , p.324.

43. ibid. , p.327.

44. V.I. Lenin, The Right of Nations to Self-Determination (1914), LCW , vol.20, p.422.

45. ibid. , p.441.

46. ibid. , p.410.

47. V.I. Lenin, Preliminary Draft Theses on the National and Colonial Questions , op. cit. p.145.

48. ibid. , p.147.

49. ibid. , p.149.

50. V.I. Lenin, The Discussion on Self-Determination Summed Up (1916), op. cit. p.325.  

Last updated on 16.8.2004

Textbook Quality Criteria and Evaluation

• First Online: 05 April 2018

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• Carl-Christian Fey 3 &
• Eva Matthes 3  

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The chapter explains the state of development of assessment methods for the quality of educational media within the general context of the current discourse about educational quality. Several theoretical approaches and the corresponding evaluation designs developed in recent years in different countries are presented and compared in order to outline common factors, methodological principles and directions. This demonstrates their primarily deductive nature, based upon their relationship to various academic disciplines, their foundation in textbook and media theories and their relationship to political, ethical or religious concepts, linguistic perspectives and methodologies and pragmatic and administrative needs. Finally, the chapter summarises benefits and new directions of textbook evaluation, focusing on its functional role regarding educational policy systems, cultural development, guiding pedagogical values and potential applications.

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Fey, CC., Matthes, E. (2018). Textbook Quality Criteria and Evaluation. In: Fuchs, E., Bock, A. (eds) The Palgrave Handbook of Textbook Studies. Palgrave Macmillan, New York. https://doi.org/10.1057/978-1-137-53142-1_11

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