Law and state as holes in Marxist theory

This article argues that Marx's initial critique of Hegel's Philosophy of Right (involving the acceptance of Hegel's dialectical transition from 'civil society' to the Rechtsstaat, or law-state but its re-explanation in political economy terms) shapes and in certain respects disables much of Marx and Engels' subsequent work. In particular, neither the national form of the capitalist state, nor its form as a Rechtsstaat, can be accounted for on the basis of the unfolding of the contradictions of the commodity without reference to the emergence of capitalism from the self-negation of feudalism. The resulting theoretical impasse may be relevant to Marx's failure to complete Capital, and led Engels in later work to project back the Hegelian transition from 'civil society' to the Rechtsstaat onto classical antiquity. Subsequent Marxist theorists of law have been led to one of two courses: either to cling to the transition from civil society to the state and in the process to abandon fundamentals of historical materialism, or to borrow from orthodox academic legal theory. Recent work by China Mieville and Didier Hanne provides examples of the uselessness of both procedures. © 2006 Critique