OSE Chapter 17. The Legal and the Social System

The impotence of politics (not the importance of politics)

This chapter should be called “The Legal, Political and Social System”. Popper described it as “probably the most crucial point in our analysis as well as in our criticism of Marxism; it is Marx’s theory of the state and—paradoxical as it may sound to some—of the impotence of all politics.”

Section I describes the theory of the state, section II describes the “grim reality” of social conditions for the workers at the time that Marx was working in England (dates), section III contains Popper’s arguments on the need to use political power to control economic power (contra the Marxian doctrine of the impotence of politics). Section IV (the central point) concerns the difference between historical prediction and rational social engineering. Section V defends the importance of “formal freedom” against radical critics who claim that freedom under the rule of law is not real freedom as long as some people are poor. Section VI notes how Marx and his followers failed to pay attention to the need to control political power because the abuse of power it is not supposed to be a problem under socialism. Section VII is about the need to use impartial rules rather than discretionary orders from politicians and bureaucrats for fair and effective public administration.

Marx’s theory of the state can be presented by combining the results of the last two chapters. The legal or juridico-political system—the system of legal institutions enforced by the state—has to be understood, according to Marx, as one of the superstructures erected upon, and giving expression to, the actual productive forces of the economic system.

‘Political power, properly so called,’ says the Manifesto, ‘is merely the organized power of one class for oppressing the other.’ A similar description is given by Lenin: ‘According to Marx, the state is an organ of class domination, an organ for the oppression of one class by another; its aim is the creation of an ‘order’ which legalizes and perpetuates this oppression ..’ The state, in brief, is just part of the machinery by which the ruling class carries on its struggle.

Popper wrote that this view of the state and the political system is partly a (rational) institutional analysis and partly an (irrefutable) essentialist theory.

It is institutional in so far as Marx tries to ascertain what practical functions legal institutions have in social life. But it is essentialist in so far as Marx neither inquires into the variety of ends which these institutions may possibly serve (or be made to serve), nor suggests what institutional reforms are necessary in order to make the state serve those ends which he himself might deem desirable. Instead of making his demands or proposals concerning the functions which he wants the state, the legal institutions or the government to perform, he asks, ‘What is the state?’; that is to say, he tries to discover the essential function of legal institutions. It has been shown before that such a typically essentialist question cannot be answered in a satisfactory way; yet this question, undoubtedly, is in keeping with Marx’s essentialist and metaphysical approach which interprets the field of ideas and norms as the appearance of an economic reality.

The most important (and dangerous) outcome of the Marxist analysis is that legal and political institutions as well as all political struggles, can never be of primary importance. In Popper’s words “politics are impotent”. This is a rather strange, even an incomprehensible finding in view of the massive amount of political activity that has been undertaken by Marxists. It suggests that must be something wrong with Marx’s ideas, or with the interpretation of Marx’s message by Marxists, or with Popper’s interpretation.

On Marx's account politics can never alter decisively the economic reality.

The main if not the only task of any enlightened political activity is to see that the alterations in the juridico-political cloak keep pace with the changes in the social reality, that is to say, in the means of production and in the relations between the classes.

Yet considering that few movements have done as much as Marxism to stimulate interest in political action, the theory of the fundamental impotence of politics appears somewhat paradoxical. (Marxists might, of course, meet this remark with either of two arguments. The one is that in the theory expounded, political action has its function; for even though the workers’ party cannot, by its actions, improve the lot of the exploited masses, its fight awakens class consciousness and thereby prepares for the revolution. This would be the argument of the radical wing. The other argument, used by the moderate wing, asserts that there may exist historical periods in which political action can be directly helpful; the periods, namely, in which the forces of the two opposing classes are approximately in equilibrium.

Another important consequence of the theory is that, in principle, all government, even democratic government, is a dictatorship of the ruling class over the ruled. ‘The executive of the modern state’, says the Manifesto, ‘is merely a committee for managing the economic affairs of the whole bourgeoisie ..’ What we call a democracy is, according to this theory, nothing but that form of class dictatorship which happens to be most convenient in a certain historical situation. (This doctrine does not agree very well with the class equilibrium theory of the moderate wing mentioned above.) And just as the state, under capitalism, is a dictatorship of the bourgeoisie, so, after the social revolution, it will at first be a dictatorship of the proletariat. But this proletarian state must lose its function as soon as the resistance of the old bourgeoisie has broken down. For the proletarian revolution leads to a one-class society, and therefore to a classless society in which there can be no class-dictatorship. Thus the state, deprived of any function, must disappear. ‘It withers away’, as Engels said.

The "grim reality

Popper considered that the Marxist theory of politics was fatally flawed because it did not warn Marxists or socialists to be alert to abuses of power (other than economic power) and the need for institutional checks and balances on all forms of power after the revolution. However he was prepared to allow an excuse for Marx’s view, an excuse that exposes the Achilles heel of Popper’s position.

It must be admitted that behind these grim as well as ingenious theories, there stood a grim and depressing experience. And although Marx, in my opinion, failed to understand the future which he so keenly wished to foresee, it seems to me that even his mistaken theories are proof of his keen sociological insight into the conditions of his own time, and of his invincible humanitarianism and sense of justice.

It is clear from many of Marx’s passages that [his] observations confirmed him in his belief that the juridico-political system is a mere ‘superstructure’ on the social, i.e. the economic, system; a theory which, although undoubtedly refuted by subsequent experience, not only remains interesting, but also, I suggest, contains a grain of truth.

For Marx lived, especially in his younger years, in a period of the most shameless and cruel exploitation. And this shameless exploitation was cynically defended by hypocritical apologists who appealed to the principle of human freedom, to the right of man to determinate his own fate, and to enter freely into any contract he considers favourable to his interests.

Using the slogan ‘equal and free competition for all’, the unrestrained capitalism of this period resisted successfully all labour legislation until the year 1833, and its practical execution for many years more. The consequence was a life of desolation and misery which can hardly be imagined in our day. Especially the exploitation of women and children led to incredible suffering. Here are two examples, quoted from Marx’s Capital: ‘William Wood, 9 years old, was 7 years and 10 months when he began to work .. He came to work every day in the week at 6 a.m., and left off about 9 p.m ...’ ‘Fifteen hours of labour for a child 7 years old!’ exclaims an official report of the Children’s Employment Commission of 1863. Other children were forced to start work at 4 a.m., or to work throughout the night until 6 a.m., and it was not unusual for children of only six years to be forced to a daily toil of 15 hours.—’ Mary Anne Walkley had worked without pause 26½ hours, together with sixty other girls, thirty of them in one room .. A doctor, Mr. Keys, called in too late, testified before the coroner’s jury that “Mary Anne Walkley had died from long hours of work in an overcrowded workroom ..”. Wishing to give this gentleman a lecture in good manners, the coroner’s jury brought in a verdict to the effect that “the deceased had died of apoplexy, but there is reason to fear that her death had been accelerated by overwork in an overcrowded workroom”.’ Such were the conditions of the working class even in 1863, when Marx was writing Capital; his burning protest against these crimes, which were then tolerated, and sometimes even defended, not only by professional economists but also by churchmen, will secure him forever a place among the liberators of mankind.

In consequence of this, Marx was led to hold that the workers cannot hope much from the improvement of a legal system which as everybody knows grants to rich and poor alike the freedom of sleeping on park benches, and which threatens them alike with punishment for the attempt to live ‘without visible means of support’. In this way Marx arrived at what may be termed (in Hegelian language) the distinction between formal and material freedom. Formal or legal freedom, although Marx does not rate it low, turns out to be quite insufficient for securing to us that freedom which he considered to be the aim of the historical development of mankind. What matters is real, i.e. economic or material, freedom. This can be achieved only by an equal emancipation from drudgery. For this emancipation, ‘the shortening of the labour day is the fundamental prerequisite’.

The political control of economic power

What have we to say to Marx’s analysis? Are we to believe that politics, or the framework of legal institutions, are intrinsically impotent to remedy such a situation, and that only a complete social revolution, a complete change of the ‘social system’, can help? Or are we to believe the defenders of an unrestrained ‘capitalist’ system who emphasize (rightly, I think) the tremendous benefit to be derived from the mechanism of free markets, and who conclude from this that a truly free labour market would be of the greatest benefit to all concerned?

I believe that the injustice and inhumanity of the unrestrained ‘capitalist system’ described by Marx cannot be questioned; but it can be interpreted in terms of what we called, in a previous chapter, the paradox of freedom.

Popper believed that the suffering of the workers described by Marx was caused by the abuse of economic power that enabled the employers to exploit the poor by making appalling demands that they could not refuse. Hence he argued that the principle of non-intervention, of an unrestrained economic system, has to be given up.

If we wish freedom to be safeguarded, then we must demand that the policy of unlimited economic freedom be replaced by the planned economic intervention of the state. We must demand that unrestrained capitalism give way to an economic interventionism. And this is precisely what has happened. The economic system described and criticized by Marx has everywhere ceased to exist. It has been replaced, not by a system in which the state begins to lose its functions and consequently ‘shows signs of withering away’, but by various interventionist systems, in which the functions of the state in the economic realm are extended far beyond the protection of property and of free contracts’.

Questions have to be raised about the cases cited by Marx (1) whether they dated from earlier times, (2) whether they were at all representative of the conditions of workers at the time or they merely represented unusual and isolated incidents and (3) whether they could have been prevented by the kind of intervention that Popper envisaged.

The central point of the analysis

I should like to characterize the point here reached as the most central point in our analysis. It is only here that we can begin to realize the significance of the clash between historicism and social engineering, and its effect upon the policy of the friends of the open society.

Marxism claims to be more than a science. It does more than make a historical prophecy. It claims to be the basis for practical political action. It criticizes existing society, and it asserts that it can lead the way to a better world. But according to Marx’s own theory, we cannot at will alter the economic reality by, for example, legal reforms. Politics can do no more than ‘shorten and lessen the birth-pangs’. This, I think, is an extremely poor political programme, and its poverty is a consequence of the third-rate place which it attributes to political power in the hierarchy of powers. For according to Marx, the real power lies in the evolution of machinery; next in importance is the system of economic class-relationships; and the least important influence is that of politics.

A directly opposite view is implied in the position we have reached in our analysis. It considers political power as fundamental.

Popper envisaged a comprehensive legislative program to control economic power – laws to limit the working day, insurance for various form of disability, unemployment, old age

And when we are able by law to guarantee a livelihood to everybody willing to work, and there is no reason why we should not achieve that, then the protection of the freedom of the citizen from economic fear and economic intimidation will approach completeness.

Not only did Marx’s theories block the development of (possibly) helpful interventions, the Marxists also neglected the greatest potential danger to human freedom. Because of the doctrine that political power was impotent they did not see the need to control it after the revolution or to be alarmed at the prospect of the “dictatorship of the proletariat”.

The importance of “formal freedom”

Marx discovered the significance of economic power; and it is understandable that he exaggerated its status. He and the Marxists see economic power everywhere. Their argument runs: he who has the money has the power; for if necessary, he can buy guns and even gangsters. But this is a roundabout argument. In fact, it contains an admission that the man who has the gun has the power. And if he who has the gun becomes aware of this, then it may not be long until he has both the gun and the money.

The dogma that economic power is at the root of all evil must be discarded. Its place must be taken by an understanding of the dangers of any form of uncontrolled power. Money as such is not particularly dangerous. It becomes dangerous only if it can buy power, either directly, or by enslaving the economically weak who must sell themselves in order to live.

Of course, in practice Marxists never fully relied on the doctrine of the impotence of political power. So far as they had an opportunity to act, or to plan action, they usually assumed, like everybody else, that political power can be used for the control of economic power. But their plans and actions were never based on a clear refutation of their original theory, nor upon any well-considered view of that most fundamental problem of all politics: the control of the controller, of the dangerous accumulation of power represented in the state. They never realized the full significance of democracy as the only known means to achieve this control. As a consequence they never realized the danger inherent in a policy of increasing the power of the state.

This does not mean that the achievement of democracy (or universal sufferage) is the end of the problem of keeping power under control. Hayek pointed out that there was a tendency for complacency about limiting the powers of democratic governments because it was assumed that “the people” would not permit abuses to be inflicted on themselves by their (democratic) leadership.

I have criticized this Utopian and Romantic approach to social engineering in a previous chapter (chapter 9). But I wish to add here that economic intervention, even the piecemeal methods advocated here, will tend to increase the power of the state. Interventionism is therefore extremely dangerous. This is not a decisive argument against it; state power must always remain a dangerous though necessary evil. But it should be a warning that if we relax our watchfulness, and if we do not strengthen our democratic institutions while giving more power to the state by interventionist ‘planning’, then we may lose our freedom. And if freedom is lost, everything is lost, including ‘planning’. For why should plans for the welfare of the people be carried out if the people have no power to enforce them? Only freedom can make security secure.

We thus see that there is not only a paradox of freedom but also a paradox of state planning. If we plan too much, if we give too much power to the state, then freedom will be lost, and that will be the end of planning.

Such considerations lead us back to our plea for piecemeal, and against Utopian or holistic, methods of social engineering. And they lead us back to our demand that measures should be planned to fight concrete evils rather than to establish some ideal good. State intervention should be limited to what is really necessary for the protection of freedom.

Persons and institutions: rules and orders

The remainder of the chapter is concerned with the kind of legislative and administrative arrangements that are required for the state to intervene without allowing dangerous discretionary powers to be assumed by politicians or officials. Possibly influenced by correspondence with Hayek, Popper proposed that state intervention should proceed by way of protective laws and a legal framework instead of empowering organs or agents of the state to act as they see fit to achieve the ends laid down by the rulers at the time.

From the point of view of piecemeal social engineering, the difference between the two methods is highly important. Only the first, the institutional method, makes it possible to make adjustments in the light of discussion and experience. It alone makes it possible to apply the method of trial and error to our political actions. It is long-term; yet the permanent legal framework can be slowly changed, in order to make allowances for unforeseen and undesired consequences, for changes in other parts of the framework, etc. It alone allows us to find out, by experience and analysis, what we actually were doing when we intervened with a certain aim in mind. Discretionary decisions of the rulers or civil servants are outside these rational methods. They are short-term decisions, transitory, changing from day to day, or at best, from year to year. As a rule (the Budget is the great exception) they cannot even be publicly discussed, both because necessary information is lacking, and because the principles on which the decision is taken are obscure. If they exist at all, they are usually not institutionalized, but part of an internal departmental tradition.

But it is not only in this sense that the first method can be described as rational and the second as irrational. It is also in an entirely different and highly important sense. The legal framework can be known and understood by the individual citizen; and it should be designed to be so understandable. Its functioning is predictable. It introduces a factor of certainty and security into social life. When it is altered, allowances can be made, during a transitional period, for those individuals who have laid their plans in the expectation of its constancy.

As opposed to this, the method of personal intervention must introduce an ever-growing element of unpredictability into social life, and with it will develop the feeling that social life is irrational and insecure. The use of discretionary powers is liable to grow quickly, once it has become an accepted method, since adjustments will be necessary, and adjustments to discretionary short-term decisions can hardly be carried out by institutional means. This tendency must greatly increase the irrationality of the system, creating in many the impression that there are hidden powers behind the scenes, and making them susceptible to the conspiracy theory of society with all its consequences—heresy hunts, national, social, and class hostility.