At the dawn of modern bourgeois jurisprudence stands the epoch-defining work of the great theologian, philosopher, and jurist Hugo Grotius: De jure belli ac pacis libri tres (Three Books on the Law of War and Peace). The learned and celebrated author himself took an active part in those protracted and often bloody struggles in which the rising bourgeois class was violently reshaping the world in its own image across all the countries of the old and new Occident. For this, he was arrested for high treason by the Dutch States-General in 1618 on the orders of Prince Maurice of Orange and thrown into prison. After several harrowing years, he escaped from prison with the help of his faithful wife, only to spend the final decades of his life in the splendid misery of exile. His work, however, remained for decades a principal work of legal scholarship—until, with the gradual decline of bourgeois jurisprudence in the 19th century, the entire doctrine of natural law, along with the teachings of Grotius, came to be viewed as a standpoint that had been scientifically overcome, possessing for the enlightened present only historical significance. In this era, the truly “scientific,” vibrant, creative, and revolutionary spirit of the theorists of natural law was supplanted—precisely at the point when the bourgeois class in Western and Central Europe gradually ceased to be a revolutionary class, an emancipating “third estate” struggling for supremacy in state and society—by a sullen, barren, and thoroughly unscientific epigonism, which proclaimed its own emptiness and weakness, its historicism and positivism, as the final and most certain conclusion of legal wisdom. Gustav Hugo—who stood in relation to the philosopher Kant, whom he endlessly invoked, as the ape does to the human—struck down the natural law of Hugo Grotius with his own “natural law,” the so-called Manifesto of the Historical School of Law later excoriated by Karl Marx. In doing so, he helped usher modern jurisprudence—especially in Germany—into that “scientific worthlessness” which, around 1848, the philosophizing jurist Kirchmann, rightly from his standpoint, diagnosed as its defining feature. The inner essence of law had become incomprehensible to this new, modern, historical and positivist bourgeois jurisprudence. With little wit and great complacency, it mistook the shell for the core; the word and its definition took the place of the concept of the thing itself, and even the very concept of the concept of law was thereby lost.

A great many scientific insights into the true nature of law, which older and more recent natural law had already gleaned, fell into complete oblivion during this period of decline in bourgeois jurisprudence. They were hastily cast aside by modern legal historicism and positivism without being properly understood. Among the greatest losses incurred along the way is the loss of Grotius’s insight that all law, when considered according to its true concept, is law of war and peace. This insight of Grotius, which was preserved throughout the entire era of natural law in one form or another, means something entirely different from the modern division of so-called international law into two parts: the law of war and the law of peace. According to Grotius, war and peace constitute a social whole, which must be understood and further developed as such by legal scholars. The epigones separated the ‘law of war’ from the living body of law, treating it as a distinct part of the legal system—incidentally, one not even entirely ‘legitimate’ and not wholly unassailable in its legal character—and established it as an independent entity. Thus war became, for them, a domain in which the so-called “law,” the normal, wholly positive law of peace, no longer held sway, and in its place stood a special, no longer entirely normal and only very provisionally positive “law of war.” Moreover, as modern wars have shown, this “law of war” largely hinders and obstructs the aims of the belligerents rather than promoting them, whereas the genuine, normal law applicable to conditions of peace sustains and advances peaceful commerce and all other affairs of peace.

Two tremendous phenomena of contemporary world history are well suited to tear away the false veil that this abstract and superficial conception of law, held by modern bourgeois jurists, has cast over the true nature of law. The first of these phenomena is the dreadful reality of the World War and its consequences, which continue to shape the present and will extend into the future. The second lies in the economic struggles between the so-called employers and employees, which, since the beginning of the century, have been growing steadily in breadth, depth, and intensity.

The World War has plainly and unmistakably shown everyone who has eyes to see and ears to hear that in modern bourgeois society, war—whether actual or potential—is omnipresent. This omnipresent war, when viewed in the broader context of modern bourgeois society, by no means disrupts or hinders the commercial transactions of the citizens of this society, but rather must be regarded as its indispensable precondition, as the most powerful lever and promoter of all truly profitable enterprises within this society. Thus, any jurisprudence that understands life must conclude that even today, in light of our cultivated and humanized modern bourgeois society, the law of this society—that is, the entirety of private and public civil law—can only be understood as a law of war and peace, just as it was understood by Hugo Grotius and his revolutionary bourgeois contemporaries 400 years ago, and by their successors, the great teachers of natural law up to Kant, Fichte, and Hegel. In recent years we have also seen that part of the younger generation of jurists has become aware that any jurisprudence which seeks to grasp all law—excepting a certain separate part of international law—as essentially making up an “order of peace,” is no longer adequate to present needs. But even these bourgeois jurists, who in recent years have grown disillusioned with their former beliefs and ways of thinking, are still far from truly grasping the fact that every legal event within today’s bourgeois society, from the most private legal matters to imperialist affairs on the world stage, is imbued with a warlike element, and even less are they able to understand and perceive what this warlike element inherent in all legal phenomena concretely and actually consists of. This inability to see and comprehend something that truly exists has its ultimate cause in the fact that bourgeois jurisprudence, by virtue of its specific historical and social character, is neither permitted nor able to see and understand certain realities and the connections among them, for by comprehending and recognizing these, it would cease to be what it actually is in its historical reality [Wirklichkeit], despite—or rather precisely because of—all its professed allegiance to the spirit of free and unconditional scientific inquiry, namely, a bourgeois class science, a part of the “science of the bourgeois class..”

To demonstrate and substantiate this, we turn directly to the field of law that most immediately and visibly bears the character of a law of war and peace—one whose actual manifestations are least comprehensible when considered from a perspective that abstracts from the concept of war. Strikingly, it is also precisely this field in which such a perspective is most sharply rejected by contemporary bourgeois legal science, as well as by its faithful satellites: the legal theory of modern social-democratic reformism à la Sinzheimer and Flatow. We are referring to the area of law designated by the famous Article 157 of the Weimar Constitution and referred to in contemporary jurisprudence as “labor law.” It is precisely in the domain of labor law that one finds the most compelling proof that today’s bourgeois legal science—like today’s bourgeois philosophy and economics—can no longer confront the actual phenomena of present-day developments in an impartial, critical, and presuppositionless manner; more precisely, it can no longer approach them without class prejudice. As a result, it is no longer capable of properly and fully grasping the true nature of these phenomena. Just as in philosophy and economics, so too in legal science: the scholars of the bourgeois age of decline, who have become counterrevolutionary in their social practice, are no longer able—either in their theoretical work—to apply and further develop those genuinely scientific methods of knowledge once introduced into legal thought by their intellectual predecessors, the old and new teachers of natural law from the era of the bourgeois revolutions. In legal science as in philosophy and economics, the true heir to the classical German intellectual tradition is not official bourgeois scholarship, which faces the uncompromising critical spirit of the classical thinkers with incomprehension, but rather the German and international workers’ movement. It is this movement that carries forward the philosophical and scientific traditions of the revolutionary natural law epoch of the bourgeoisie, and from them develops its new, revolutionary proletarian method of legal cognition and legal formation.

Labor law is the law of war and peace for the two great classes that confront each other in contemporary bourgeois society: the ruling bourgeoisie and the proletariat that rises up against its rule. Anyone who tries to overlook, evade, or deny this insight is entirely incapable of explaining why it is necessary precisely here to break so illogically with the usual and long-established system of jurisprudence, tearing the most diverse provisions of bourgeois private law and bourgeois public law—commercial, industrial, administrative law, substantive and procedural law—out of their “natural” systematic context in order to combine them into a special bloc called “labor law.” The lengthy and contrived justifications with which bourgeois jurists have tried, and still try, to resolve this problem—posed by the very concept and designation “labor law”—cannot conceal the fact that no legal scholar would ever have thought to claim conceptual autonomy for labor law were it not for the reality of proletarian class struggles, above all the major economic struggles (strikes and lockouts) in all countries, which time and again have provided compelling real reasons for doing so. It is also quite easy to show that a large—indeed, the largest and most essential—part of what even the most strictly bourgeois jurists today understand by the term “labor law” is no longer bourgeois law at all, and can no longer be subsumed—without coercion—under either the so-called private law or the so-called public law of contemporary bourgeois society. Some have therefore called it “social law,” without providing themselves or us with a sufficiently clear account of the reasons behind this new terminology. All they’ve done is coin a new word, following Goethe’s remark that where concepts are lacking, a word will conveniently step in. That they do not in fact possess a new concept corresponding to this new state of affairs is demonstrated by the fact that they wish to insert this “social law” just as cheerfully and uncritically—mutatis mutandis—as a third category of bourgeois legal norms alongside bourgeois private law and bourgeois public law within the bourgeois legal system. In reality, however, social labor law is no longer, in any sense, something essentially akin to the normal private or public law of bourgeois society. Most labor disputes—for example, a major strike carried out by workers who, under their private employment contracts, may be dismissed at any time without notice—are not waged to assert any existing rights of individual persons, whether private or public (and civil law, after all, recognizes only such rights of individuals, whether natural or legal!). Such a labor conflict, aimed for instance at forcibly securing a reduction in working hours or an increase in wages, is not fought on the basis of any preexisting legal entitlement. Rather, it is waged as a so-called “total conflict” [Gesamtstreitigkeit], a collective struggle over rights that are to be created only through the successful conduct of the strike, for a plurality of persons who are neither defined by private law nor determinable by means of private law. Even from a purely external perspective, it more closely resembles a war between independent states that ends in a peace settlement than a civil dispute between private individuals or even between domestic authorities over specific legally regulated relations. And where is it written that a “war” can only occur between sovereign states, and not also between entirely different kinds of collective entities? Here too, in defining war as something that occurs between states and peoples, we are by no means dealing with a natural or self-evident concept that has always existed in this form, but rather with a specifically “scientific” definition of war, devised for the purposes of modern society, which is dominated by the bourgeois class. Hugo Grotius knew nothing of this stilted, parochial framing [künstlichen Einschränkung], and the epigones of the nineteenth century, adopting an air of superior judgment, reproached him for distinguishing “several kinds of war”—namely, private war alongside public war, and within the latter again various forms, of which only one is war between states. According to Grotius’s definition, war is “the condition of persons who engage in violent conflict with one another” (Book I, Chapter 1). In much the same way, the greatest philosopher of war produced by the bourgeois class at the end of its revolutionary period—General Karl von Clausewitz—teaches in his eight books On War that war is “a conflict of great interests resolved by bloodshed, and only in this is it different from other conflicts.” Yet even this latter criterion—the necessity of a “bloody” resolution—is not treated by Clausewitz as an essential feature of war. He later admits, on a conceptual level, the possibility of “wars” that consist merely in threatening the adversary and serve as a means of negotiation (III, 138). There is thus nothing to prevent us from overturning this post hoc conceptual constriction imposed by the epigones, and from recognizing the economic, social, and political class struggles of the proletarian class against the economically, socially, and politically dominant bourgeois class not merely as “struggles,” but as direct “wars”: conflicts that, by their very concept, already are wars—even in their most undeveloped and inconspicuous forms—and which, as we shall soon see, ultimately unfold and intensify into full-fledged wars in actual historical reality [wirklichen geschichtlichen Erscheinung].

By introducing the concept of war into the new science of contemporary labor law, far more is gained—scientifically—than merely a new term. With a single conceptual move, we gain the intellectual thread that binds the entire, seemingly disparate and heterogeneous mass of today’s labor law norms into a coherent whole. All our notions of labor law relations thereby gain a more precise sense, firmer orientation, and more concrete applicability. Beyond that, this new principle enables us to unite not only contemporary labor law in all its manifestations, but also its historical development—past as well as future—into a unified total representation[Gesamtvorstellung]: just as the great bourgeois natural law theorist Grotius once did in his three books De jure belli ac pacis, and as, in even more consummate form two hundred years later, the last bourgeois philosopher, Hegel, developed the totality of the becoming and being of bourgeois society in his Outline of the Philosophy of Right (the so-called Philosophy of Right).

Labor law stands opposed to the old, positive, ossified law of the disintegrating bourgeois society and the crumbling bourgeois state—even within this very society and state itself—as the new proletarian law of the working class, just as once in classical natural law from Grotius to Hegel the new bourgeois law of the third estate stood opposed to the rigid positive law of the decaying feudal society, which it would later replace through victorious revolutionary force by shattering medieval law. If, then, at the heart of all our social struggles, and indeed of our political struggles—both domestic and foreign—today lies the struggle over the conditions of labor of the proletarian wage-earning class fighting for its emancipation, it follows inevitably that the theory of modern labor law must itself be drawn into the throes of this struggle. In the practical and theoretical fight for the creation and further development of “labor law,” the proletarian class is striving to establish its natural law, and this labor law thus only reveals its full meaning to those who do not view it as a finished system of norms, imposed over the contending parties by a power standing above them, but rather grasp it in a “natural law” sense—as a law of war and peace for the mutually opposed classes in today’s bourgeois society, a law that is in the very midst of its becoming, constantly changing and developing. A law of war and peace for the classes confronting one another in bourgeois society! This proposition must be understood in its full significance. Above all, it means that we must, with the classical natural law thinkers—Grotius, Hegel, Clausewitz—and with the political economists of the proletarian class, Marx and Lenin, comprehend the true nature of war and its genuine relation to peace. Almost as mistaken as the abstraction that regards modern labor law essentially as a norm of peace is the opposite abstraction that opens an unbridgeable gulf between war and peace, thereby concluding that there exists a fundamental opposition between the labor law governing working relations under conditions of economic peace and the law of labor struggles. War and peace form a unity within social life, as Grotius, Kant, Fichte, Hegel, and Clausewitz teach us. War does not stand over against peace as something entirely different or absolutely opposed; rather, war still contains peace, just as peace already contained war, and conversely: there is war already within peace, just as in peace—for example, the Treaty of Versailles—war still persists. As Clausewitz says, one must completely free oneself from the common notion that war, although brought about by the political intercourse of states, causes “that intercourse to cease with the onset of the state of war and an entirely different condition to arise, one that is governed only by its own laws.” War, according to Clausewitz’s most famous dictum, is “nothing but the continuation of state policy by other means.” And in just the same way, the labor struggle of striking proletarians is nothing but the continuation of the movement they had previously conducted by other means for the same economic and political aims—a movement they will continue, for the same aims or for aims that are intensified or diminished, even after the end of the strike, after the restoration of the so-called “economic peace,” by both peaceful and militant means, until they have achieved their true class goal: until the working class, like its predecessor—the “third estate” of the bourgeois revolution—has transformed itself from social nothing into social everything. Until then, labor law remains a law of war and peace between the antagonistic classes of bourgeois society, which stand opposed in an irreconcilable and ultimately intractable conflict.

In the broader conceptual world of German Idealist philosophy—especially in the philosophy of Fichte—and likewise in the specific philosophy of war developed by the Fichtean Clausewitz, there exists a concept that may at first strike today’s reader as somewhat peculiar: the concept of absolute or holy war, whose essence is indeed shared, to a greater or lesser degree, by every ordinary war in actual history, but which is said to have appeared in fully developed form only in what was then the present—in the wars of the fourteen French revolutionary armies, in the battles of the great Napoleon, whom German philosophers referred to as “the god of war himself,” and perhaps also in the counter-wars provoked by these Napoleonic campaigns and modeled upon them, such as the German War of Liberation of 1813—a form of war distinguished from all ordinary wars above all by the fact that its aim does not lie merely in securing some advantage over the opponent, but in his complete subjugation [Niederwerfung]: “whether by politically destroying him or by simply rendering him defenseless, and thereby forcing him into whatever peace one desires.” Whether such an absolute war is waged depends not only on the will of those conducting the war, but primarily on the energies of the politics that pursues its aims through such a war—and this politics, in turn, is not the product of the free choices of individual statesmen, but finds its real roots in the total, and above all the economic, development of the society in question.

In relation to wars between states, this Fichtean-Clausewitzian concept of “holy” or “absolute” war seems to carry a certain mysticism. In the days of 1914 we witnessed the most horrifying caricature of such a “holy war,” and we regard the entire notion of holy war with both theoretical and practical distrust. But it is precisely when we transfer this distinction between ordinary wars and absolute war to our own field, to the field of the labor struggles of the proletarian class, that the concept of absolute war, in this application, sheds all mysticism—and can even retroactively resolve for us, in a rational manner, that dark riddle which the classical bourgeois philosophers sought to solve in mystical form through their concept of a “holy” war that towers above all ordinary wars.

We have already emphasized that we can only fully grasp the true nature of even the smallest and seemingly most insignificant wage struggle or labor dispute when we do not view this individual industrial conflict as an isolated phenomenon, but as merely a partial process within the larger overall process of the proletarian revolution, which is ultimately directed toward the conquest of political power by the working class. In all these manifold small and large, isolated and mass, economic, social, political, and military struggles—and in the “peaceful” actions that take place between these actual struggles—the working class is laboring and fighting its way toward that final and decisive struggle that will be waged for the conquest of political power itself. This struggle is then the “absolute” war that the proletariat, in its historical hour, is called upon to wage—a war that can no longer achieve its political aim by securing some individual advantage over the adversary, but only through the complete overthrow of the opponent. The role that this fully conscious final battle—“bloody death or nothingness, the question is inexorably posed!”—is destined to play for the revolutionary proletariat is the same role that, in earlier centuries, was played by those wars through which a Napoleon “swept away the feudal forms everywhere beyond France’s borders, insofar as it was necessary to provide bourgeois society in France with a corresponding contemporary environment on the European continent,” and likewise, to a greater or lesser extent, by all the so-called “wars of nations” of the bourgeois revolutionary epoch that aimed at constituting the bourgeois nation-states. These wars were objectively necessary parts of that final battle through which the third estate—the bourgeois class—seized complete power over state and society throughout Europe and reshaped the world in its own image. It was from this source that they drew that unheard-of energy and ruthlessness in waging war which so often provoked both horror and astonished admiration among their contemporaries. Yet one thing distinguishes these past struggles for power by the bourgeois class from the present and future struggle for power by the proletarian class—the same thing that also distinguishes the concept of natural law held by the bourgeois classics from that new “natural law” conception which the revolutionary proletariat today opposes to the conceptless positivism of bourgeois jurisprudence. The heroes and protagonists of those bloody struggles in the heroic age of the bourgeoisie fought partly with a simple mystical belief in the sanctity of their mission, like Cromwell, and partly with the conviction that they were realizing eternal human rights, like Robespierre and St. Just. They had little understanding of the actual historical significance of the struggles they were compelled to carry out—just as the classical teachers of natural law had little idea that the sacred and eternal birthrights of humanity which they had theoretically established merely expressed the legal condition of bourgeois class society, adapted to the mode of production of a particular historical epoch. The proletariat is the first class to undertake the fulfillment of its world-historical task with complete and clear consciousness. It does not seek to perpetuate the natural right of its own class, for the realization of which it wages its present struggles, after its victory; rather, it aims to sublate the right [Recht] of the working class itself—together with all classes and class antagonisms. In the proletarian revolution of the nineteenth and twentieth centuries, the revolution has at last reached its own true content.

Translated by Hunter Bolin