From: https://www.facebook.com/forwardlk
We have repeatedly stated that if anyone is genuine about finding solutions to the ongoing crisis, he /she must not confine to the framework of the existing constitution. At the same time, the ruling class is talking about bringing another amendment probably to fool the masses with some parliamentary gimmicks. Most of the activists also now got into the trap of sticking to the constitutional framework, because the state, and the constitutional laws that surround it, are deliberately mystified by the popular media and the educational system. We were told that the Parliamentary democracy and the Rule of Law are treated as immutable ideas woven into the fabric of the universe. So when a crisis develops over the structure of the bourgeois state itself, this risks dispelling its aura of mystery and power.
A constitution is like the legal scaffolding that holds up the state and which limits and directs its activities. To really get to grips with the concept of a constitution we need to have a clear understanding of the state itself – what it is, how it arose and why it needs this legal scaffolding around it.
The state is something we are all very familiar with and take for granted, but its real essence tends to elude us. The ideologists of capitalism have tried, in various ways, to justify the capitalist state as supremely rational; a neutral arbiter for society, and the embodiment of justice. But, the state is not at all neutral, nor just.
The state has not always existed. Engels explains that “historically, the state arose at a point when society had developed the forces of production to the extent that it had become entangled in insoluble class antagonisms”. Those who were part of the ruling, the property-owning class proceeded to concentrate wealth and power in their hands. They used their wealth to inflict debt, bankruptcy and slavery on the lower classes and used their new weapon of the state to sanction all of this through law. The initial rise of state power in Athens was never anything other than the consolidation of naked class rule by the rich over the poor.
The state is inseparable from class society. Ultimately, it is the instrument for the ruling class to oppress and hold down the masses, guaranteeing the status quo and the sanctity of property. Although the modern state performs many other functions, these are secondary to its real basis – the protection of a set of property relations. To do this, it needs “armed bodies of men” and a monopoly on the use of violence.
The state today is not simply an amalgamation of the wealthiest people in the country and their armies. Now, there exists a clear and complete set of constitutional rules. Today’s state has limits placed on its powers, through the separation of different parts of the state (the legislative, the executive and the judiciary), through human rights treaties and a myriad of other legal and political mechanisms. And these rights are, in theory, enforceable by any individual acting through the courts. The result is, that today the law and the constitution are seen as guarantors of the independence and neutrality of the state. But this is an illusion. Today’s state remains a powerful weapon in the class struggle. Dressing it up in wigs and gowns with labels like ‘constitution’ doesn’t change this fundamental fact.
The capitalist system brought with it ideas such as equal political power for all (as long as you owned property and were a man), instead of hereditary rights. The parliament made up of elected representatives was empowered to do the legislation. In addition, executive action could be limited by the judiciary, through the medium of the courts. Democracy, the equal application of the law, and the freedom to work for whomever you pleased were all central to the new bourgeois order, albeit in a limited format first. These are the basis of the rules that we today refer to as part of the constitution.
All of this raises some questions. Why did constitutional laws arise in the first place? And why has the ruling class allowed the state to formally, and legally detach itself from those in whose interests it operates by means of ‘checks and balances, instead of continuing to take the form of naked oppression of one class by another?
It isn’t enough to answer these questions by saying that it is convenient for the capitalists to have an ideological smokescreen for their exploitation, though, of course, it is convenient to be able to hide this weapon of class oppression behind high-sounding phrases like ‘Rule of Law’. But that doesn’t explain why they have ended up with this particular ideological smokescreen. Why do we have the mechanism of a constitution to facilitate capitalist exploitation rather than something else?
The answer is that constitutional law is not just a clever idea dreamt up accidentally. Its form, as well as its content, is inseparable from commodity exchange and the development of the capitalist mode of production.
Competition is an inherent feature of the capitalist system. This competition leads to various divisions within the bourgeoisie itself. Therefore, the bourgeois system from the very beginning wanted to prevent a section of the bourgeoisie from gaining power and working against the existence of another section of its own class. Capitalist system wants the constitutionalism for this purpose.
This constitutionalism is referred to by Lenin in State and Revolution. He refers to a constitutional state as a “democratic republic”. He says: “Another reason why the omnipotence of ‘wealth’ is more certain in a democratic republic is that it does not depend on defects in the political machinery or on the faulty political shell of capitalism. A democratic republic is the best possible political shell for capitalism, and, therefore, once capital has gained possession of this very best shell… it establishes its power so securely, so firmly, that no change of persons, institutions or parties in the bourgeois-democratic republic can shake it.”
What Lenin is explaining here is that a democratic republic, or a constitutional state, builds capitalism into the foundations of the state – into the very rules within which it operates. This is because, as explained above, it is based on commodity exchange and equal individual legal rights. Once this has been established, political parties, people and institutions can come and go but they will all be limited by the constitutional rules of the “democratic republic”, which means the rules of the capitalist system. This is why Lenin says that such a state is the “best possible political shell for capitalism”.
Like everything, this has certain limits, because there are times under capitalism when the ruling class has to resort to unconstitutional means to keep itself in power, such as the fascist regimes of the 20th century. Also, in times of crisis, when the interests of the national bourgeoisie can no longer be guaranteed through the ‘rule of law’, war breaks out to establish a new order, such as in the First and Second World Wars. During the rise of imperialism so-called ‘rule of law’ did not apply to the colonial peoples whose wealth was taken from them on the basis of unequal exchange, which necessitated the use of the “armed bodies of men” at the disposal of the imperialist states.
All laws, including constitutional law, is a reflection of the real class forces at play in society. At this moment it reflects the real interests of global capitalism, which is responsible for the agony of the people today. What we need to do is not to get trapped by this mechanism of capitalist rule, but to get out from it. That’s why we need a new order based on councils of workers and oppressed masses.
