3.

We have seen how the law was born out of established customs and usages, and how from the beginning it represented a clever mixture of sociable customs necessary for the preservation of the human race, with other customs imposed by those who exploited to their advantage popular superstitions and the right of the strongest. This double character of the law has determined its further development among peoples who are increasingly disciplined. But while the nucleus of sociable customs written into the law undergoes a slight and slow modification over the centuries, it is the other aspect of the law that develops apace, always to the advantage of the dominant classes, always to the detriment of the oppressed classes. Only with difficulty and very rarely can one wrest from the dominant class any law that represents, or seems to represent, a guarantee for the disinherited. But then that law will merely abrogate a preceding law that had been made for the advantage of the ruling class. "The best laws," said Buckle Buckle. See note 53. Trans. ⁵⁶ "were those that abrogated preceding laws." But what terrible efforts have been necessary, what streams of blood have had to be shed each time the effort was made to abrogate one of those institutions that serve to keep the people in fetters! To abolish the last vestiges of serfdom and of feudal rights, to break the power of the royal gang, France had to pass through four years of revolution and twenty years of war. To abrogate the least of the iniquitous laws that the past has bequeathed to us, dozens of years of struggle are needed and in the end most of them will only disappear during revolutionary periods.

The socialists have already told on many occasions the history of capital. They have recounted how it was born of wars and pillage, of slavery and serfdom, of fraud and modern ways of exploitation. They have shown how it was nourished by the blood of the workers and how it has slowly conquered the entire world. They have still to write the same kind of history regarding the genesis and development of the law. The popular mind, as always going ahead of the savants, is already working out the philosophy of that history and marking out its essential landmarks.

Created in order to guarantee the fruits of pillage, monopoly and exploitation, the law has followed the same phases of development as capital; twin brother and sister, they have walked hand in hand, both of them feeding on the sufferings and sorrows of humanity. Their history has been practically the same in all the countries of Europe. It is only the details that differ; the basic system is identical, and one has only to cast an eye over the development of the law in France, or in Germany, to understand the essential characteristics of its development in most European countries.

In its origins, the law was the national pact or contract. On the Roman parade ground the legions and the people agreed on their contract. The Field of May The Field of May. In some of the smaller Swiss cantons a measure of direct democracy still prevails, and the citizens gather in a field on the edge of the town, often with a great lime tree as a focus as in Appenzell, and actually vote their own laws on the spot, appointing at the same time a council to see that the people's will is carried out. Trans. ⁵⁷ of the primitive communes of Switzerland (where the assembled people vote their own laws) retains a memory of that epoch despite all the changes that have taken place through the permeation of a centralizing bourgeois civilization. It is true that this contract was not always freely accepted; even at that epoch the rich and the powerful were trying to impose their will. But at least they encountered an obstacle to their efforts in the popular masses which often made their strength felt.

As the Church on one side and the gentry on the other succeeded in reducing the people to servitude, the right to make laws escaped from the hands of the nation and passed into those of the privileged. The Church extended its powers; sustained by the wealth which accumulated in its coffers, it interfered more and more in private life, and, under the pretext of saving souls, it exploited the soil of its serfs; it levied its dues from all classes and broadened its jurisdiction; it multiplied both crimes and punishments, and enriched itself in proportion to crimes committed, since it was into its strongboxes that the proceeds of the fines would flow. The laws had no relevance to the interests of the nation: "One might rather think of them as emanating from a gathering of fanatics rather than of legislators," observed one historian of French law.

At the same time, as the lord for his part extended his power over the farm labourers and the town artisans, he became also both judge and legislator. In the tenth century such monuments of public law as existed were not much more than treaties regulating the obligations, feudal tasks and tributes of the serfs and the lord's vassals. The legislators of this period were a handful of brigands, ever increasing in numbers and organizing themselves to exploit a people that became more and more passive as its members dedicated themselves to tilling the fields. They exploited to their advantage the feeling of justice that is inherent in all peoples; they posed as men of justice, yet made the very application of justice a source of revenue, and formulated laws that served to sustain their domination.

Later on these very laws, gathered together and classified by the legal experts, served as the basis for our modern codes. And people still talk of respecting the codes -- those heritages of the baron and the priest!

The first revolution, the revolution of the communes, succeeded in abolishing these laws only in part, for the charters of the free communes were mostly no more than compromises between seigniorial and episcopal legislation and the new relations that were created in the heart of the free commune. And yet, what a difference between those laws and our present-day laws! The commune did not bring itself to imprisoning and guillotining its citizens for reasons of State; it limited itself to expelling whoever plotted with the enemies of the commune and demolishing his home. For most of the so-called "crimes and misdemeanours" it restricted itself to imposing fines; one even sees in the Communes of the 12th century that principle which is so just, but now forgotten, by which the whole community took responsibility for the misdeeds committed by its members. The societies of that era, considering crime as an accident or a misfortune -- which to this day is the conception of Russian peasants -- and refusing to admit the principle of personal vengeance, which is preached in the Bible, understood that for each crime the fault lies with all society. It needed all the influence of the Byzantine church, which imported among the Celts and the Germans the penalty of death and the horrible torments that were later inflicted on those who were considered criminals, and as well as the influence of the Roman civil code -- developed by imperial Rome -- to introduce those notions of unlimited property in land which, in the end, overwhelmed the communalist customs of the primitive peoples.

We know that the free communes were unable to sustain themselves; they became the prey of the kings. And as royalty gained further strength, the right of legislation passed more and more into the hands of a clique. Appeals to the notion were made only to sanction the taxes imposed by the kings. Parliaments (sometimes called at intervals of two centuries at the pleasure and whim of the Court), "extraordinary councils," "assemblies of noblemen" or ministers who hardly listened to the grievances of the king's subjects -- these were the legislators. And even later, when all the powers were concentrated in a single person who said, "The State is I," it was "in the secrecy of the Prince's Council," according to the fantasy of a minister or an imbecile king, that the edicts were fabricated which the subjects were expected to obey under pain of death. All judicial guarantees were abolished; the nation became a serf to the royal power and a handful of courtiers. The most terrible of penalties -- breaking on the wheel, burning at the stake, flaying alive, tortures of all kinds -- produced by the sick fantasy of monks and frenzied fools who sought their pleasures in the sufferings of the tormented: such was the "progress" that made its appearance at this epoch.

It is to the Great Revolution that belongs the honour of having begun the demolition of that crazy structure of laws left to us by feudalism and the reign of kings. But after having demolished certain parts of this ancient edifice, the revolution transferred the power of lawmaking into the hands of the bourgeoisie which in turn began to erect a new scaffolding of laws designed to maintain and perpetuate its domination over the masses. In its parliaments it legislated far and wide, and mountains of useless papers accumulated with alarming rapidity. But what, basically, are all these laws?

Most of them have only one aim: protecting individual property, which means the riches acquired by the exploitation of man by man, opening further fields of exploitation to capital, and sanctioning the new forms exploitation assumes as capital seizes on new areas of human life -- railways, telegraphs, electric light, chemical industries, even the expression of human thought through literature and science, etc. The rest of the laws, basically, have always the same aim: to maintain the governmental machine that assures capital the exploitation and accumulation of all the wealth that is produced. Magistrature, police, armed forces, public instruction, finance -- all serve the same God: capital; all have but one end, to protect and further the exploitation of the workers by the capitalist. Analyze all the laws that have been made in the last eighty years, and you will find nothing else. The protection of individuals, which is presented to you as the true mission of the law, occupies only an almost imperceptible place, for in our present-day societies attacks on the person, dictated directly by hatred and brutality, are on the decline. If someone is killed nowadays, it is usually for robbery and rarely for personal revenge. And if this kind of crime and misdemeanour continues to diminish, it is certainly not due to legislation, but to the development of our societies, to our increasingly sociable habits, not to the prescriptions of our laws. If one were to abrogate tomorrow all the laws concerning the protection of people, if one ceased tomorrow all prosecutions for crimes against people, the number of attacks caused by personal revenge or brutality would not show the least increase.

Perhaps someone will say that over the past fifty years a good number of liberal laws have been passed. But when one analyses these liberal laws one finds that they are no more than the abrogation of laws we have inherited from the barbarism of previous centuries. All the liberal laws and the whole of the radical programme can be summed up in these words: abolition of the laws that are inconvenient to the bourgeoisie itself, and a return to the laws of the twelfth century communes, extended to all citizens. The abolition of the death penalty, juries for all "crimes" (the jury, more liberally administered than today, existed in the 12th century), an elected magistrate, the right to prosecute public servants, the abolition of standing armies -- all this, which we are told is an invention of modern liberalism, is no more than a return to freedoms that existed before the Church and the King extended their grasp over humanity.

The protection of exploitation, directly by laws regarding property, and indirectly by sustaining the State -- there is the essence and substance of our modern codes and the preoccupation of our costly machines of legislation. It is time now no longer to accept phrases but to take account of what exists in reality. The law which was originally presented to us as a collection of customs useful for the preservation of society, is now no more than an instrument for maintaining exploitation and for the domination of the idle rich over the labouring masses. Today its civilizing mission is nil; it has only one mission, the maintenance of exploitation.

That is how we must tell the history of the development of the law. Must we respect it for that? Certainly not. No more than capital itself, the product of brigandage, does it have a right to our respect. And the first duty of the revolutionaries in the nineteenth century will be to make a bonfire of all existing laws, as they will of all titles to property.