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Research & Reports

Martial Law in the United States: Its Meaning, Its History, and Why the President Can’t Declare It

Summary: The concept has never been well understood. What should be clear, however, is that the president lacks the authority to declare it.

Executive Power

Introduction

On August 20, 1942, military police in Honolulu, Hawaii, arrested a man named Harry White. Under normal circumstances, the U.S. military would not have been involved in his case. He was a stockbroker, not a soldier, and neither he nor his business had any connection with the armed forces. Even his alleged crime — embezzlement of funds from a client — was a violation of civilian, not military, law. footnote1_9585pcb 1 Duncan v. Kahanamoku, 327 U.S. 304, 309–10 (1946).

But nothing about Hawaii was normal in 1942. It had been under martial law since the Japanese attack on Pearl Harbor in December 1941. footnote2_ewx4mrs 2 Although Hawaii was an incorporated territory, not a state, in 1942, the Supreme Court found that the Constitution applied there in full and that the legality of martial law must be analyzed as though it were a state. Duncan , 327 U.S. at 319. Its courts were closed and replaced with military tribunals. The rules governing everyday life were set not by an elected legislature but by the military governor. The army controlled every aspect of life in the islands, from criminal justice to parking zones and curbside trash removal. footnote3_y0sgw6s 3 Harry N. Scheiber and Jane L. Scheiber, Bayonets in Paradise: Martial Law in Hawai’i during World War II (Honolulu: University of Hawai’i Press, 2016).

White was brought before a military provost court. His attorney objected to the court’s jurisdiction, requested a jury trial, and asked for time to prepare a defense. But Major Murrell, the presiding military officer, rejected these motions. Instead, just five days after being arrested, White was tried without a jury, convicted, and sentenced to five years in prison. footnote4_3lj9g6c 4 Duncan , 327 U.S. at 309–10; and Ex parte Duncan, 146 F.2d 576, 577 (9th Cir. 1945).

As White’s story illustrates, martial law — a term that generally refers to the displacement of civilian authorities by the military — can be and has been employed in the United States. Indeed, federal and state officials have declared martial law at least 68 times over the course of U.S. history . footnote5_41dezf2 5 Joseph Nunn, Guide to Declarations of Martial Law in the United States , Brennan Center for Justice, August 20, 2020, https://www.brennancenter.org/our-work/research-reports/guide-declarations-martial-law-united-states . Yet the concept has never been well understood. The Constitution does not mention martial law, and no act of Congress defines it. The Supreme Court has addressed it on only a handful of occasions, and the Court’s reasoning in these decisions is inconsistent and vague. footnote6_1n36ssg 6 Duncan , 327 U.S. 304; Sterling v. Constantin, 287 U.S. 378 (1932); Moyer v. Peabody, 212 U.S. 78 (1909); Ex parte Milligan, 71 U.S. 2 (1866); and Luther v. Borden, 48 U.S. 1 (1849). The precedents are also old: the most recent one — in which the Court overturned Harry White’s conviction — was decided almost 75 years ago.

This report aims to clear up the confusion that surrounds martial law. To do so, it draws on recent legal scholarship, the few rules that can be gleaned from Supreme Court precedent, and general principles of constitutional law. It concludes that under current law, the president lacks any authority to declare martial law. Congress might be able to authorize a presidential declaration of martial law, but this has not been conclusively decided. State officials do have the power to declare martial law, but their actions under the declaration must abide by the U.S. Constitution and are subject to review in federal court.

Outside of these general principles, there are many questions that simply cannot be answered given the sparse and confusing legal precedent. Moreover, although lacking authority to replace civilian authorities with federal troops, the president has ample authority under current law to deploy troops to assist civilian law enforcement. Until Congress and state legislatures enact stricter and better-defined limits, the exact scope of martial law will remain unsettled, and the president’s ability to order domestic troop deployments short of martial law will be dangerously broad.

Part I: What is Martial Law?

“Martial law” has no established definition. footnote1_41g5iaw 1 Duncan , 327 U.S. at 315 (“The term martial law carries no precise meaning.”).

In the United States, however, the military’s domestic activities typically fall into one of three categories. First, the armed forces sometimes assist civilian authorities with “non–law enforcement” functions. For example, in the aftermath of Hurricane Katrina in 2005, the military deployed helicopters along the Gulf Coast to carry out search-and-rescue missions that local governments were unable to do themselves. Second, and far less frequently, the military assists civilian authorities with “law enforcement” activities. For example, state and federal troops were deployed to help police suppress the 1992 Los Angeles riots. Third, on some occasions, the military has taken the place of the civilian government. This is what happened in Hawaii during World War II.

Usually, but not always, the term “martial law” refers to the third category. It describes a power that, in an emergency, allows the military to push aside civilian authorities and exercise jurisdiction over the population of a particular area. Laws are enforced by soldiers rather than local police. Policy decisions are made by military officers rather than elected officials. People accused of crimes are brought before military tribunals rather than ordinary civilian courts. In short, the military is in charge. footnote2_2q1aua5 2 William C. Banks and Stephen Dycus, Soldiers on the Home Front: The Domestic Role of the American Military (Cambridge, MA: Harvard University Press, 2016), 198; John Fabian Witt, “A Lost Theory of American Emergency Constitutionalism,” Law and History Review 36 (August 2018): 581–83; Stephen I. Vladeck, “The Field Theory: Martial Law, the Suspension Power, and the Insurrection Act,” Temple Law Review 80 (Summer 2007): 391–439; Stephen I. Vladeck, “Emergency Power and the Militia Acts,” Yale Law Journal 114 (Fall 2004): 149, 162; and George M. Dennison, “Martial Law: The Development of a Theory of Emergency Powers, 1776–1861,” American Journal of Legal History 18 (January 1974): 61.

This is a dramatic departure from normal practice in the United States. The U.S. military, when allowed to act domestically at all, is ordinarily limited to assisting civilian authorities. Martial law turns that relationship on its head. The displacement of civilian government distinguishes it from other emergency powers, such as the suspension of the writ of habeas corpus. Suspending the writ allows the government to detain and hold individuals without charge but does not imply any unusual role for the armed forces. While a declaration of martial law might be accompanied by a suspension of habeas corpus, they are distinct concepts.

Martial law has not always meant what it does today. The term first appeared in England in the 1530s during the reign of King Henry VIII. footnote3_neplp3s 3 John M. Collins, Martial Law and English Laws, c. 1500–c. 1700 (Cambridge: Cambridge University Press, 2016), 27. At that time and for centuries afterward, martial law generally referred to what is now called “military law.” footnote4_1mkf607 4 Collins, Martial Law and English Laws , 3–7; and Dennison, “Martial Law,” 52. This is the law that applies when a soldier is court-martialed. In the modern United States, it is codified in the Uniform Code of Military Justice. footnote5_32944l3 5 Uniform Code of Military Justice, 64 Stat. 109, 10 U.S.C. §§ 801–946.

U.S. law did not recognize martial law as an emergency power until the mid-19th century. Before that time, the idea of allowing military rule in an emergency was considered outrageous — as evidenced by the national reaction to the first declaration of martial law in U.S. history. In December 1814, toward the end of the War of 1812, Gen. Andrew Jackson led a small army in the defense of New Orleans against a much larger invading British force. As part of his defensive preparations, Jackson imposed martial law on the city. He censored the press, enforced a curfew, and detained numerous civilians without charge. Moreover, he continued military rule for more than two months after his famous victory at the Battle of New Orleans had ended any real threat from the British. footnote6_fdyq3mj 6 Matthew Warshauer, Andrew Jackson and the Politics of Martial Law: Nationalism, Civil Liberties, and Partisanship (Knoxville: University of Tennessee Press, 2006), 19–46.

Jackson argued that his actions were justified because the government in New Orleans had ceased to function as a result of the impending British attack, leaving the military as the only body able to protect the city. In that situation, he claimed, the military had the authority to do anything that was “necessary” to preserve New Orleans. footnote7_5ntgtkk 7 Dennison, “Martial Law,” 61–62; and Vladeck, “Field Theory,” 422. This was a novel argument, and it did little to explain why he kept the city under martial law for so long.

At the time, almost everyone rejected Jackson’s theory, which perhaps is unsurprising. The founding generation had been deeply suspicious of military power. That suspicion is apparent in the Declaration of Independence, which accuses King George III of rendering “the Military independent of and superior to the Civil power” — and in the Constitution, which pointedly divides the war powers between Congress and the president, and requires that the commander in chief always be a civilian. footnote8_0m8grqx 8 Vladeck, “Emergency Power and the Militia Acts,” 156–58.

In an 1815 case, the Louisiana Supreme Court described Jackson’s conduct in New Orleans as “trampling upon the Constitution and laws of our country.” footnote9_e6s6x3h 9 Dennison, “Martial Law,” 64 (citing Johnson v. Duncan et al. Syndics, 1 Harr. Cond. Rep. 157–70 [1815]). Similarly, acting Secretary of War Alexander Dallas explained in a letter to Jackson that martial law had no legal existence in the United States outside of the Articles of War, the predecessor to the modern Uniform Code of Military Justice. footnote10_umrhpcd 10 Dennison, “Martial Law,” 64 (citing Dallas to Jackson, 12 April, 1 July 1815, in John Spencer Bassett and J. Franklin Jameson, eds., Correspondence of Andrew Jackson , vol. 2, Andrew Jackson Papers, Library of Congress, Washington, DC, 1926–35, 203–4, 212–13). Overall, the consensus in 1815 was that martial law was simply another term for military law, and that military jurisdiction could extend no further than the armed forces themselves.

After Jackson relinquished control of New Orleans back to its civilian government, the local federal district judge held him in contempt of court, fining him $1,000. Jackson paid the fine, and for the next 27 years, nothing more came of the incident. However, in the early 1840s, the now-aging former president orchestrated a campaign in Congress to refund him the cost of the fine, plus interest. footnote11_u7g9rw9 11 Warshauer, Andrew Jackson and the Politics of Martial Law , 6–12.

The ensuing congressional refund debates marked the beginning of a shift in how Americans understood martial law. By pursuing a refund, Jackson hoped to set a precedent for, as one historian put it, “the legitimacy of violating the Constitution and civil liberties in times of national emergency.” footnote12_x1gyjd9 12 Warshauer, Andrew Jackson and the Politics of Martial Law , 5–6. He got exactly what he wanted. Congress enacted the refund bill in February 1844, symbolically endorsing Jackson’s three-month-long imposition of martial law in New Orleans almost 30 years after it had ended. footnote13_q8oxw62 13 Act of February 16, 1844, ch. 2, 5 Stat. 651.

By this time, the United States’ second experience with martial law was already underway in Rhode Island. The so-called “Dorr War” involved a dispute over the state’s first constitution, which severely restricted the right to vote. In 1842, after efforts to reform this system had been rebuffed for years, a large group of Rhode Islanders led by Thomas Dorr organized its own constitutional convention, adopted a new constitution, held elections, and declared itself the true government of Rhode Island. When Dorr rallied his supporters to assert their authority by force, the Rhode Island General Assembly declared martial law and called out the state militia to suppress the rebellion. footnote14_3ielpyu 14 Luther , 48 U.S. at 35–37; and Dennison, “Martial Law,” 68.

In 1849, the U.S. Supreme Court upheld the legality of Rhode Island’s martial law declaration in Luther v. Borden . footnote15_q14ygne 15 Luther , 48 U.S. at 47.

Writing for the majority, Chief Justice Roger Taney — of Dred Scott infamy — embraced Andrew Jackson’s idea that martial law allows civilians to be subjected to military jurisdiction in an emergency. He described this power as an essential part of states’ right to defend themselves and suggested that it is inherent to all sovereign governments. footnote16_ytwsphj 16 Luther , 48 U.S. at 45. By endorsing the constitutionality of martial law, the Supreme Court finished what Congress had started with the refund bill. The Luther decision makes clear that martial law exists as an emergency power that can be invoked in the United States, at least by state legislatures. footnote17_9p1gz5p 17 Vladeck, “Field Theory,” 428–29; and Dennison, “Martial Law,” 76.

But Luther also leaves many questions unanswered. It does not explain the legal basis for martial law, its scope, when it may be declared, or who is authorized to declare it. Indeed, the Supreme Court has never directly held, in Luther or any subsequent case, that the federal government has the power to impose martial law. In one case, the Court suggested in “dicta”— a term for language in a judicial opinion that is not a necessary part of the holding and is not strictly legally binding — that the federal government may declare martial law. footnote18_bsgdzc4 18 Milligan , 71 U.S. at 127. It assumed the same in another case, but only for the purpose of deciding a narrower legal question. footnote19_8w3kxf7 19 Duncan , 327 U.S. at 313. Neither of those decisions conclusively affirms that a federal martial law power exists.

Indeed, the Supreme Court has never directly held, in Luther or any subsequent case, that the federal government has the power to impose martial law.

Over time, however, consistency of practice has papered over gaps in the legal theory. The United States made extensive use of martial law during the Civil War, imposing it on border states like Missouri and Kentucky where U.S. forces battled with Confederate insurgents. footnote20_iaca5p9 20 Vladeck, “Emergency Power and the Militia Acts,” 175–83; and Banks and Dycus, Soldiers on the Home Front , 203–7. The Confederacy, too, relied on it heavily. footnote21_1jejm6r 21 Mark E. Neely Jr., Southern Rights: Political Prisoners and the Myth of Confederate Constitutionalism (Charlottesville: University Press of Virginia, 1999). The practice did not end with the war: in the 90 years between the start of the Civil War and the end of World War II, martial law was declared at least 60 times. footnote22_0ec2fkg 22 Joseph Nunn, Guide to Declarations of Martial Law in the United States , Brennan Center for Justice, August 20, 2020. What had been manifestly unconstitutional in the eyes of the Louisiana Supreme Court in 1815 had become a relatively ordinary part of American life by the end of the 19th century.

States — and state governors in particular — have declared martial law far more often than the federal government. In the 1930s, Oklahoma Governor William “Alfalfa Bill” Murray declared martial law at least 6 and perhaps more than 30 times during his tenure. footnote23_1p1cd6m 23 Debbie Jackson and Hilary Pittman, “Throwback Tulsa: Colorful ‘Alfalfa Bill’ Fell Short in Presidential Bid,” Tulsa World , July 14, 2016, https://www.tulsaworld.com/news/local/history/throwback-tulsa-colorful-alfalfa-bill-fell-short-in-presidential-bid/article_23b7bd2f-12ce-5415-a92f-937ecb40c0a6.html. City mayors and generals within states’ National Guard forces have also declared martial law on occasion. However, no state legislature has done so since the Rhode Island General Assembly in 1842.

Not all of the military deployments under these declarations included what we today consider the defining feature of “martial law” — the displacement of civilian authority. Many cases involved the use of the military to reinforce local police. In other cases, however, troops effectively replaced the police, and in some instances, they were used to impose the will of state or local officials rather than to enforce the law.

State officials have sometimes declared martial law in response to violent civil unrest or natural disasters, such as the Akron Riot of 1900 or the 1900 Galveston hurricane. footnote24_b04twtj 24 Mary Plazo, “That Akron Riot,” Past Pursuits: A Newsletter of the Special Collections Division of the Akron-Summit County Public Library 9 (Summer 2010): 7, https://www.akronlibrary.org/images/Divisions/SpecCol/images/PastPursuits/pursuits92.pdf; and “Martial Law at an End: Conditions at Galveston Improving,” Los Angeles Herald , September 21, 1900, 2. Far more often, however, they have used martial law to break labor strikes on behalf of business interests. For example, in September 1903, at the request of mine owners, Colorado Governor James Peabody declared martial law in Cripple Creek and Telluride to break a peaceful strike by the Western Federation of Miners. The Colorado National Guard conducted mass arrests of striking workers and detained them in open-air bull pens. The Guard even ignored state court orders to release the prisoners, with one officer declaring, “To hell with the constitution.” footnote25_w9cezhj 25 Elizabeth Jameson, All That Glitters—Class, Conflict, and Community in Cripple Creek (Champaign: University of Illinois Press, 1998), 207–8.

States’ use of martial law continued well into the 20th century, reaching a peak in the 1930s — a decade that also saw an increase in the flagrant abuse of this power by governors. In 1933, for example, Georgia Governor Eugene Talmadge declared martial law “in and around” the headquarters building of the state Highway Board as part of a scheme to force out some of the board’s commissioners, whom he had no legal power to remove. This “coup de highway department” was ultimately successful. Remarkably, Talmadge’s successor, Governor Eurith Rivers, tried to do the same thing in 1939, but his attempt failed. footnote26_9eb2y4p 26 “National Affairs: Martial Law,” Time, July 3, 1933, http://content.time.com/time/magazine/article/0,9171,745726,00.html; and Miller v. Rivers, 31 F. Supp. 540 (M.D. Ga. 1940), rev’d as moot, 112 F.2d 439 (5th Cir. 1940).

Misuses of martial law were not confined to Georgia. In 1931, Texas Governor Ross Sterling engaged in a standoff with the federal courts over his government’s ability to enforce a regulation limiting oil production by private well operators. At the climax of the conflict, Sterling imposed martial law on several counties — despite the total absence of violence or threats of violence — and deployed the Texas National Guard to enforce the regulation. He declared that the federal courts had no power to review his decision. The U.S. Supreme Court disagreed, explaining that “[t]here is no such avenue of escape from the paramount authority of the Federal Constitution.” footnote27_xg9kbi9 27 Sterling , 287 U.S. at 398, 403–4. It ordered Texas to stop using the military or any other means to enforce the regulation.

The federal government has used martial law far less frequently than the states, imposing it only a few times since the end of Reconstruction. Generals have declared it more often than the president, such as in 1920, when U.S. Army Gen. Francis C. Marshall imposed martial law on Lexington, Kentucky, in order to suppress a lynch mob attempting to storm the courthouse. footnote28_i0ooros 28 Peter Brackney, The Murder of Geneva Hardman and Lexington’s Mob Riot of 1920 (Charleston, SC: History Press, 2020), 97–98. Most recently, the federal government declared martial law in Hawaii after the Japanese attack on Pearl Harbor in 1941, which initiated three years of absolute military rule in the islands. footnote29_9t51x67 29 Scheiber and Scheiber, Bayonets in Paradise .

As abruptly as it took hold in the mid-19 th century, martial law disappeared from American life after World War II. The federal government has not declared martial law since it restored civilian rule to Hawaii in 1944. At the state level, martial law was last declared in 1963, when Maryland Governor J. Millard Tawes imposed it on the city of Cambridge for more than a year in response to clashes between racial justice advocates and segregationists. footnote30_3bjtwlb 30 Joseph R. Fitzgerald, The Struggle Is Eternal: Gloria Richardson and Black Liberation (Lexington: University Press of Kentucky, 2018), 121–29; Rebecca Contreras, “Cambridge, Maryland, Activists Campaign for Desegregation, USA, 1962–1963,” Global Nonviolent Action Database , last modified July 27, 2011, accessed July 30, 2020, https://nvdatabase.swarthmore.edu/content/cambridge-maryland-activists-campaign-desegregation-usa-1962–1963; Hedrick Smith, “Martial Law Is Imposed in Cambridge, Md., Riots,” New York Times , July 13, 1963, 1, 6, https://nyti.ms/30fTf3i; and “Tawes Withdraws Last Guard Troops in Cambridge, Md.,” New York Times , July 8, 1964, 18, https://nyti.ms/39PfcK0 . But even if the power to declare martial law has not been used in decades, it still exists in the case law and in the record books — and it remains poorly understood.

Part II: Can the President Unilaterally Declare Martial Law?

Despite the widespread use of martial law in the century that followed the Supreme Court’s ruling in Luther , many of the legal questions surrounding it remain unanswered. The Court has never explained the legal basis for martial law. It has implied that the federal government can declare it but has never said so conclusively. When discussing the possibility of a federal martial law power, the Court has never clearly indicated whether the president could unilaterally declare martial law or if Congress would first need to authorize it.

Insofar as the Supreme Court has said anything on these questions, its statements have been inconsistent. During the 19th century, the Court suggested in dicta that a federal martial law power was “implied in sovereignty” or justified by “necessity.” footnote1_m9sbygw 1 Luther , 48 U.S. at 45; and United States v. Diekelman, 92 U.S. 520, 526 (1875). In the early 20th century, it seemed to believe that the state martial law power was related to the executive’s constitutional power to “execute the law.” footnote2_w5o1z6p 2 Sterling , 287 U.S. at 398; and Duncan , 327 U.S. at 335 (Stone, C. J., concurring in the result). Note that both the portion of Luther that Chief Justice Stone cites and the rest of his opinion directly contradict his own opening proposition. During World War II, the Court assumed (without deciding) that Congress could authorize a federal declaration of martial law but did not make clear whether that authorization was required . footnote3_ck2dp17 3 Duncan , 327 U.S. at 312–24. In contrast, in a much earlier but influential 1866 concurring opinion, Chief Justice Salmon Chase did conclude that federal martial law exists and that it must be authorized by Congress. footnote4_00ji5jp 4 Milligan , 71 U.S. at 132–42 (Chase, C. J., concurring in part and dissenting in part).

Looking only at the Supreme Court’s martial law decisions, one can pick and choose from them to argue for almost anything. The case law is inconsistent and too sparse for a clear pattern in the Court’s reasoning to emerge. It is also old: even the most recent Supreme Court decision on martial law — Duncan v. Kahanamoku , decided in 1946 — predates many significant developments in U.S. constitutional law. footnote5_rfkqtxi 5 Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952); Mapp v. Ohio, 367 U.S. 643 (1961); Massiah v. United States, 377 U.S. 201 (1964); Griswold v. Connecticut, 381 U.S. 479 (1965); Miranda v. Arizona, 384 U.S. 436 (1966); Hamdi v. Rumsfeld, 542 U.S. 507 (2004); Hamdan v. Rumsfeld, 548 U.S. 557 (2006); Boumediene v. Bush, 553 U.S. 723 (2008); and War Powers Resolution, 50 U.S.C. §§ 1541–48. The precedents thus provide little help in determining the legal basis for martial law — or, assuming that federal martial law is even permissible, whether its use is controlled by Congress or the president.

One must therefore turn to a different Supreme Court case for guidance: Youngstown Sheet & Tube Co. v. Sawyer . footnote6_gfcrjf9 6 Youngstown , 343 U.S. 579. Decided in 1952, Youngstown held that President Harry Truman could not seize U.S. steel mills to prevent a labor dispute from disrupting the nation’s supply of steel in wartime. The decision — and Justice Robert Jackson’s concurring opinion in particular — has since become the doctrinal lodestar for assessing any exercise of power by the executive. footnote7_kznj2q7 7 Medellin v. Texas, 552 U.S. 491, 128 S. Ct. 1346, 1350 (2008) (“Justice Jackson’s familiar tripartite scheme provides the accepted framework for evaluating executive action in this area.”); Dames & Moore v. Regan, 453 U.S. 654, 661 (1981) (“Justice Jackson in his concurring opinion in Youngstown . . . brings together as much combination of analysis and common sense as there is in this area.”); and H. Jefferson Powell, The President as Commander in Chief: An Essay in Constitutional Vision (Durham, NC: Carolina Academic Press, 2014), 53–135. Consider, for example, if the president were to declare martial law over the U.S. border with Mexico, deploying the army to enforce federal immigration laws and setting up military tribunals to prosecute alleged violators. In that hypothetical scenario, a federal court would likely apply Youngstown to decide whether the president had exceeded executive authority.

Under Youngstown , the courts show varying degrees of deference to presidential action, depending on whether the president is acting in accordance with or contrary to the will of Congress. Justice Jackson identified three “zones” into which presidential actions might fall. In the first zone, Congress has authorized the president’s conduct, entitling it to maximum deference from the courts. The court will uphold the action unless the federal government, as a whole, lacks the power to act. In the second zone, Congress has said nothing on the matter, so courts must search the Constitution to find some independent authority for the president’s action. In the third zone, the president’s conduct is contrary to laws Congress has passed. These actions are impermissible unless Congress has overstepped its own powers. footnote8_xawnbxw 8 Youngstown , 343 U.S. at 635–38 (Jackson, J., concurring).

Although Youngstown did not address a declaration of martial law, Justice Jackson’s concurring opinion briefly mentioned the concept. Having stated that the Constitution’s drafters “made no express provision for exercise of extraordinary authority because of a crisis,” he included the following caveat in a footnote: “I exclude, as in a very limited category by itself, the establishment of martial law.” footnote9_wtrxoii 9 Youngstown , 343 U.S. at 650n19 (Jackson, J., concurring). This language acknowledges the possibility that martial law might exist as an emergency power, despite the lack of any express provision for it in the Constitution. It does not, however, suggest where that power lies, and certainly does not indicate that it belongs solely to the executive branch. Nor does it render the three-zone test inapplicable in the context of martial law.

How would a unilateral presidential declaration of martial law on the southern border fare under Youngstown ’s three-zone test? We start with what Congress has said: Congress has legislated so extensively with respect to the domestic use of the military — through, for example, the Posse Comitatus Act, the Insurrection Act, the Stafford Act, the Non Detention Act, and various other provisions within Title 10 of the U.S. Code — that it has “occupied the field.” footnote10_2q1okoq 10 18 U.S.C. § 1385; 10 U.S.C. §§ 251–55; 42 U.S.C. § 5121 et seq.; 18 U.S.C. § 4001(a); 10 U.S.C ch. 15, §§ 271–84; and Youngstown , 343 U.S. at 639 (Jackson, J., concurring). This means that Congress has created such a dense and comprehensive network of rules that anything the president does in this area that is not affirmatively authorized by statute is almost necessarily against Congress’s will. Such actions, including a hypothetical presidential declaration of martial law that Congress has not authorized, would fall within Youngstown ’s third zone.

Furthermore, the Posse Comitatus Act creates a general rule that it is unlawful for federal military forces to engage in civilian law enforcement activities — even if they are merely supplementing rather than supplanting civilian authorities — except when doing so is expressly authorized by Congress. footnote11_qpwb1yw 11 Jennifer K. Elsea, The Posse Comitatus Act and Related Matters: The Use of the Military to Execute Civilian Law , CRS report no. R42659 (Washington, DC: Congressional Research Service, 2018), https://fas.org/sgp/crs/natsec/R42659.pdf. The Posse Comitatus Act nominally allows for constitutional exceptions to its general rule, but none exists. As it is generally understood, martial law necessarily involves military participation in civilian law enforcement. While there are a number of statutory exceptions to the Posse Comitatus Act, none of them authorizes the president to declare martial law, as part III of this report explains. Therefore, the president’s declaration of martial law would directly violate the act, which again places it within zone 3 under Youngstown .

In zone 3, the president’s powers are at their “lowest ebb” and presidential actions are rarely upheld. footnote12_9mndz6j 12 Youngstown , 343 U.S. at 639 (Jackson, J., concurring). This reflects a general rule of constitutional law: that laws passed by Congress within the scope of its own constitutional powers “disable” contrary executive action. footnote13_ryowz2b 13 Hamdan , 548 U.S. at 593n23 (“Whether or not the President has independent power, absent congressional authorization, to convene military commissions, he may not disregard limitations that Congress has, in proper exercise of its own war powers, placed on his powers.”); Youngstown , 343 U.S. at 654–55 (Jackson, J., concurring); Little v. Barreme, 6 U.S. 170 (1804); and Powell, President as Commander in Chief , 101–8. In other words, when Congress and the president disagree, Congress wins. Under Youngstown , this rule may be overcome — and the president can act against the will of Congress — only when a “conclusive and preclusive” grant of presidential power in the Constitution authorizes the challenged action. footnote14_qct84an 14 Youngstown , 343 U.S. at 637–38 (Jackson, J., concurring). If the Constitution gives Congress any powers in that area, then the president’s authority is not “conclusive and preclusive,” and Congress’s will must prevail.

The critical question, then, is how the Constitution allocates the powers related to domestic deployment of the military. Three provisions of the Constitution implicate that sort of authority: the Calling Forth Clause in Article I, the Guarantee Clause in Article IV, and the Commander in Chief Clause in Article II. footnote15_b6ay6g8 15 U.S. Const. art. I, § 8, cl. 15 (empowering Congress “[t]o provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions.”); U.S. Const. art. IV, § 4 (“The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against Invasion; and on Application of the Legislature, or of the Executive (when the Legislature cannot be convened) against domestic Violence.”); and U.S. Const. art. II, § 2, cl. 1 (“The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States.”). The balance of power established by these provisions decisively favors Congress over the president.

The Calling Forth Clause empowers Congress to “provide for” — that is, to regulate and control — the authority and procedures for “calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions.” As Justice Jackson explained in Youngstown , this provision was “written at a time when the militia rather than a standing army was contemplated as the military weapon of the Republic.” footnote16_i25efjr 16 Youngstown , 343 U.S. at 644 (Jackson, J., concurring). It thus “underscores the Constitution’s policy that Congress, not the Executive, should control utilization of the war power as an instrument of domestic policy.” footnote17_pggk056 17 Youngstown , 343 U.S. at 644 (Jackson, J., concurring); and Stephen I. Vladeck, “The Calling Forth Clause and the Domestic Commander-in-Chief,” Cardozo Law Review 29 (January 2008): 1091–108.

The Guarantee Clause requires the United States to “protect each [state] against Invasion; and on Application of the Legislature, or the Executive (when the Legislature cannot be convened) against domestic Violence.” This language is less clear-cut than the Calling Forth Clause, but it certainly does not constitute a “conclusive and preclusive” commitment of power to the executive. Instead, it grants authority to the federal government as a whole. Furthermore, it only allows unilateral federal action in the case of invasion. In the event of “domestic violence,” the affected state must request help before the federal government can act.

Lastly, the Commander in Chief Clause would not enable the president to unilaterally declare martial law in disregard of the Posse Comitatus Act and other statutes that regulate the domestic use of the military. To start, the Commander in Chief Clause is not a source of domestic regulatory authority for the president. footnote18_u0nkdy5 18 Youngstown , 343 U.S. at 643–44 (Jackson, J., concurring); and Powell, President as Commander in Chief , 120–21. As Justice Jackson explained in Youngstown , “the Constitution did not contemplate that the title Commander-in-Chief of the Army and Navy” would also mean the president was “Commander-in-Chief of the country, its industries and its inhabitants.” footnote19_fimz765 19 Youngstown , 343 U.S. at 643–44 (Jackson, J., concurring). While the clause grants something more than an “empty title,” its invocation does not give the president free rein. footnote20_kspwdg9 20 Youngstown , 343 U.S. at 641 (Jackson, J., concurring). In domestic affairs, both generally and with respect to the role of the military, the Constitution envisions Congress as the branch in control. footnote21_55a79bx 21 Vladeck, “Calling Forth Clause and the Domestic Commander-in-Chief,” 1106.

To be sure, the president’s powers under the Commander in Chief Clause do not cease to exist inside the territorial United States. If a foreign enemy launches a sudden attack inside the United States, it is generally understood that the president may act to repel that attack, even if Congress has not given its blessing. footnote22_mrstjn7 22 Prize Cases, 67 U.S. (2 Black) 635, 669 (1862). And if Congress has authorized military action, the president controls the actual conduct of military operations, even if that fighting is taking place within the country’s borders (for instance, during a foreign invasion or civil war). But the former power is quite limited, and the latter relies on prior congressional authorization.

Because the Constitution does not give the president “conclusive and preclusive” authority over the domestic use of the military — and, on the contrary, explicitly vests power in the legislative branch — the president cannot act against Congress’s wishes in this area. Accordingly, a unilateral declaration of martial law by the president today — on the southern border or elsewhere — would not survive a legal challenge under Youngstown .

It bears emphasizing that this conclusion is compelled partly by the Constitution and partly by federal law. It is possible that, in the absence of the Posse Comitatus Act and other laws regulating domestic military activity, the president could rely on some independent executive power to declare martial law. But that scenario is hypothetical and the likely legal outcome is uncertain. The reality is that the domestic role of the U.S. military is subject to pervasive statutory regulation. This has altered what might otherwise be the scope of the president’s constitutional authority and precludes a unilateral presidential declaration of martial law. footnote23_mp91fen 23 In Justice Jackson’s words, “presidential powers are not fixed but fluctuate, depending upon their disjunction or conjunction with those of Congress.” Youngstown , 343 U.S. at 635 (Jackson, J., concurring); and Powell, President as Commander in Chief , 99–100.

In the imagined scenario described earlier, the president set up military tribunals to try violators of federal immigration law. The Posse Comitatus Act, however, only applies to military participation in law enforcement . When it comes to military involvement in judicial functions, the analysis changes, and the law is characterized by profound uncertainty. While the Calling Forth Clause expressly contemplates the use of military forces to execute the law, no provision of the Constitution authorizes the military to perform the functions assigned to the judicial branch under Article III. Nonetheless, the Supreme Court’s 1866 decision in Ex parte Milligan suggests that the president can, in certain circumstances, impose martial law in an area and replace the civilian courts there with military tribunals. footnote24_fx3glb3 24 Milligan , 71 U.S. at 127.

The Court’s reasoning in Milligan has some striking inconsistencies and must be interpreted cautiously. In one part of the opinion, the Court firmly asserts that emergency conditions can never justify exceeding the bounds of the Constitution. footnote25_b54142s 25 Milligan , 71 U.S. at 120–21. Elsewhere, however, the Court says that “necessity” might warrant declaring martial law and using military tribunals to try civilians if regular courts are unavailable. footnote26_98h4sd6 26 Milligan , 71 U.S. at 127. Importantly, this latter part of the Court’s opinion is dicta, rather than a necessary and binding part of the Court’s holding. That alone gives reason to doubt whether there is indeed a “necessity” loophole that allows the military to put civilians on trial. But the larger issue is that a necessity exception to the Constitution is impossible: it is a fundamental principle of U.S. constitutional law, reaffirmed countless times both before and after the Milligan ruling, that the government is always constrained by the Constitution, no matter the circumstances. footnote27_930cke3 27 Youngstown , 343 U.S. 579; Carter v. Carter Coal Company, 298 U.S. 238 (1936); Ex parte Merryman, 17 F. Cas. 144 (C.C.D. Md. 1861); McCulloch v. Maryland, 17 U.S. 316 (1836); and Marbury v. Madison, 1 Cranch 137 (1803).

In any event, even if the necessity-based exception articulated in Milligan were considered to be authoritative, it would be extremely narrow. It would allow the military to supplant civilian courts only during an actual war, on “the theatre of active military operations,” where the chaos and fighting are so severe that the regular courts have been forced to close and are unable to operate. footnote28_1eg79tu 28 Milligan , 71 U.S. at 127.

The possibility of using martial law to replace civilian courts with military tribunals should not be confused with the rule established by Ex parte Quirin in 1942. footnote29_24ecp8f 29 Ex parte Quirin, 317 U.S. 1 (1942). Quirin and a handful of more recent Supreme Court decisions related to the U.S. military’s detention facility at Guantanamo Bay allow U.S. citizens not serving in the military to be tried by military commission — a particular type of tribunal used by the U.S. military — if they are “enemy combatants.” footnote30_rknc2cs 30 Quirin , 317 U.S. at 46; Hamdi , 542 U.S. 507; Hamdan , 548 U.S. 557; and Boumediene , 553 U.S. 723. These individuals, the Court has held, are subject to the international law of war. As a result, Congress may authorize their trial by military commission even if civilian courts are open and functioning, pursuant to its authority to “define and punish . . . Offences against the Law of Nations.” footnote31_i95a8tc 31 U.S. Const. art. I, § 8 cl. 10. These decisions are not about martial law. They demarcate the line between military and civilian jurisdiction, rather than allowing the military to exercise jurisdiction in an area ordinarily reserved for civilian courts.

Part III: What has Congress Said About Martial Law?

No existing federal statute explicitly authorizes the president to declare martial law. footnote1_4yxuxfr 1 Two federal statutes (48 U.S.C. §§ 1422, 1591) authorize the territorial governors of Guam and the U.S. Virgin Islands to declare martial law under certain circumstances. Neither statute grants any power to the president. However, there are a number of statutory exceptions to the Posse Comitatus Act that allow the president to deploy the military domestically. footnote2_5u88itw 2 Elsea, Posse Comitatus Act , 31–49. The most important of these is the Insurrection Act. footnote3_y3xd75u 3 10 U.S.C. §§ 251–55. Rather than a single package of legislation, the Insurrection Act consists of a series of statutes that were enacted between 1792 and 1871, with a few amendments in the 20th century. footnote4_3h4cscg 4 These statutes are the 1792 Calling Forth Act, the 1795 Militia Act, the 1807 Insurrection Act, the 1861 Suppression of the Rebellion Act, and the 1871 Ku Klux Klan Act. The 1792 act and parts of the 1871 act contained sunset provisions, and are no longer in force, but their text and legislative history remain instructive. Vladeck, “Emergency Power and the Militia Acts,” 152n9.

Three of the Insurrection Act’s provisions grant the president power to deploy troops domestically. The first two, Sections 251 and 252, are relatively straightforward and mirror the language of the Calling Forth Clause. Under Section 251, if there is an insurrection in a state, and the state’s legislature (or governor, if the legislature is unavailable) requests federal aid, then the president may deploy the National Guard or the regular armed forces to suppress the insurrection. footnote5_dma44nu 5 10 U.S.C. § 251 (“Whenever there is an insurrection in any State against its government, the President may, upon the request of its legislature or of its governor if the legislature cannot be convened, call into Federal service such of the militia of the other States, in the number requested by that State, and use such of the armed forces, as he considers necessary to suppress the insurrection.”). Section 252 allows the president to deploy troops without a request from the affected state — indeed, even against the state’s wishes — in order to “enforce the laws” of the United States or to “suppress rebellion” whenever “unlawful obstructions, combinations, or assemblages, or rebellion” make it “impracticable” to enforce federal law in that state by the “ordinary course of judicial proceedings.” footnote6_1jro39y 6 10 U.S.C. § 252 (“Whenever the President considers that unlawful obstructions, combinations, or assemblages, or rebellion against the authority of the United States, make it impracticable to enforce the laws of the United States in any State by the ordinary course of judicial proceedings, he may call into Federal service such of the militia of any State, and use such of the armed forces, as he considers necessary to enforce those laws or to suppress the rebellion.”).

Nothing in the plain language of Sections 251 and 252 indicates that they authorize martial law. The clause in Section 251 that empowers the military to “suppress an insurrection” does not suggest that federal troops may take over the role of the civilian government in the process. Rather, it contemplates that the military may assist overwhelmed civilian authorities by doing exactly what soldiers are trained to do: fight and defeat an armed and hostile group.

Section 252 suggests a more expansive power: it allows the military to enforce federal law, not just to suppress an insurrection. Nonetheless, it still does not imply that the military may push aside the civilian authorities. In its 1946 decision in Duncan , the Supreme Court made clear that when a statute authorizes the military to encroach on the affairs of civilian government, the Court will interpret it extremely narrowly. If the statute does not specifically say that Congress meant to disrupt the “traditional boundaries” between civilian and military power, the Court will not imply that intent on Congress’s behalf. footnote7_whdy823 7 Duncan , 327 U.S. at 319–24. Because Section 252 does not expressly authorize the displacement of civilian authorities, it should not be read as license to turn the normal relationship between civilian and military power on its head. Instead, it should be understood merely as authorization for the military to assist civilian government officials when they are overwhelmed by forces attempting to obstruct law enforcement and judicial proceedings.

Section 253 is the only substantive provision of the Insurrection Act that might, on its face, be read to authorize a limited form of martial law. Among other things, it allows the president to use the National Guard or the active duty armed forces to suppress “any insurrection, domestic violence, unlawful combination, or conspiracy” in a state if it “so hinders the execution of [state or federal] laws” that “any part or class of [the state’s] people” is deprived of a constitutional right and “the constituted authorities” of the state “are unable, fail, or refuse to protect” that right. footnote8_fsl946k 8 The full text of 10 U.S.C. § 253 provides the following: The President, by using the militia or the armed forces, or both, or by any other means, shall take such measures as he considers necessary to suppress, in a State, any insurrection, domestic violence, unlawful combination, or conspiracy, if it— (1) so hinders the execution of the laws of that State, and of the United States within the State, that any part or class of its people is deprived of a right, privilege, immunity, or protection named in the Constitution and secured by law, and the constituted authorities of that State are unable, fail, or refuse to protect that right, privilege, or immunity, or to give that protection; or (2) opposes or obstructs the execution of the laws of the United States or impedes the course of justice under those laws. In any situation covered by clause (1), the State shall be considered to have denied the equal protection of the laws secured by the Constitution. As in Section 252, the desires of the state are irrelevant.

By its express terms, Section 253 contemplates a situation in which, rather than needing help from the military to enforce the laws, the civilian authorities are just not enforcing them. As a result, the president may send in troops to suppress whatever insurrection or other violence is causing a portion of the people in that state to be deprived of a constitutional right. Thus, if troops are deployed under Section 253, they will, to some extent at least, take over the role of the civilian government. However, the legislative history of Section 253 indicates that it is best understood as allowing the military to supplant only the local police, and to do so in service of laws duly enacted by civilian authorities. footnote9_69g67n3 9 What is now 10 U.S.C. § 253 originated as Section 3 of the 1871 Ku Klux Klan Act. Civil Rights (Ku Klux Klan) Act of 1871, ch. 22, 17 Stat. 13. The act’s legislative history indicates that Congress meant for section 3 to authorize the military to take over the role of the local police, but nothing more. Cong. Globe, 42d Cong., 1st Sess. at 567–68 (1871) (statement of Sen. Edmunds). Moreover, the House version of Section 4 of the act explicitly authorized the president to declare martial law, but this language was removed before the bill was sent to the Senate. See Cong. Globe, 42d Cong., 1st Sess. at 317 (1871) (statement of Rep. Shellabarger); and Cong. Globe, 42d Cong., 1st Sess. at 478 (1871) (statement of Rep. Shellabarger). The fact that Congress considered and removed the martial law language demonstrates that it was aware of martial law and either chose not to authorize it or determined that it lacked the power to do so. This is so narrow that calling it even a “limited form” of martial law would probably be an exaggeration. Indeed, the Department of Defense’s own regulations emphasize the importance of maintaining the “primacy of civilian authority” when troops are deployed in support of law enforcement operations. footnote10_3xew7bg 10 U.S. Department of Defense, “Defense Support of Civilian Law Enforcement Agencies,” Instruction no. 3025.21, last updated February 8, 2019, https://www.esd.whs.mil/Portals/54/Documents/DD/issuances/dodi/302521p.pdf; and Ryan Goodman and Steve Vladeck, “The Untold Power of Bill Barr to Direct US Military Forces in Case of ‘Civil Unrest,’” Just Security , June 9, 2020, https://www.justsecurity.org/70672/the-untold-power-of-bill-barr-to-direct-us-military-forces-in-case-of-civil-unrest/.

The Insurrection Act is an exception to the Posse Comitatus Act, but there are also some circumstances in which the latter law simply does not apply. As part V of this report explains, the Posse Comitatus Act does not affect the ability of states to call up their National Guard forces and deploy them within their own borders. In that situation, National Guard troops are operating in State Active Duty status. The Posse Comitatus Act also does not apply when National Guard forces are activated in what is known as Title 32 status, in which the troops remain subject to state command and control, but are used for federal missions and are typically paid for by the federal government. footnote11_pf07ym4 11 Elsea, Posse Comitatus Act , 61–62n419; Steve Vladeck, “Why Were Out-of-State National Guard Units in Washington, D.C.? The Justice Department’s Troubling Explanation,” LawFare , June 9, 2020, https://www.lawfareblog.com/why-were-out-state-national-guard-units-washington-dc-justice-departments-troubling-explanation; and Jennifer K. Elsea, The President’s Authority to Use the National Guard or the Armed Forces to Secure the Border , CRS report no. LSB10121 (Washington, DC: Congressional Research Service, 2018), https://fas.org/sgp/crs/natsec/LSB10121.pdf.

On its face, Title 32 appears to authorize a fairly limited set of activities relating to drug interdiction and counter-drug activities, homeland security protection, and training exercises. In early June 2020, however, U.S. Attorney General William Barr put forward a shockingly broad interpretation of the section of Title 32 that addresses “required training and field exercises” for National Guard forces. Under this section, training may include “operations or missions undertaken . . . at the request of the President or Secretary of Defense.” footnote12_nc27u0z 12 32 U.S.C. § 502(f)(2)(A). In a formal letter explaining the deployment of several states’ National Guard forces to Washington, DC, during protests that followed the police killing of George Floyd in May 2020, Barr asserted that this language allows the president to use the National Guard at any time and for any reason — a reading that effectively creates a gaping loophole in the Posse Comitatus Act. footnote13_9ew5fcy 13 Kerri Kupec DOJ (@KerriKupecDOJ), “Letter from Attorney General William P. Barr to D.C. Mayor Muriel Bowser on the Trump Administration’s restoration of law and order to the District,” Twitter, June 9, 2020, 3:45 p.m., https://twitter.com/kerrikupecdoj/status/1270487263324049410.

The attorney general’s interpretation is suspect for a number of reasons, but even if it were correct, it would not authorize martial law. footnote14_6ibaoyx 14 Vladeck, “Why Were Out-of-State National Guard Units in Washington, D.C.?” As with the Insurrection Act, there is no clear statement in Title 32 to suggest that Congress intended to reverse the usual constitutional order in which the military remains subordinate to civilian authority. Under the Supreme Court’s reasoning in Duncan , the language cited by Barr could at most be read to authorize the use of the military to assist civilian law enforcement authorities. footnote15_3t54rgi 15 Duncan , 327 U.S. at 319–24.

In short, no existing statute authorizes the president to declare martial law. Congress has given the president considerable authority, however, to use troops domestically to assist in civilian law enforcement activities. Deploying troops under the Insurrection Act might not raise all of the same concerns that would be associated with a declaration of martial law, but there is reason to worry whenever a president uses the military as a domestic police force — particularly without the consent of the state to which the armed forces are sent.

To start, using the military to enforce the law flies in the face of American tradition. The Founders were deeply suspicious of the very idea of a national standing army, believing that it could be used as an instrument of oppression and could pose a threat to the autonomy of the individual states. footnote16_nlusoz7 16 Vladeck, “Emergency Power and the Militia Acts,” 156. Many of the protections enshrined in the Constitution’s Bill of Rights reflect the hard lessons the Founders learned at the hands of British soldiers about the dangers of allowing the military to act as a domestic police force. They worried that a president equipped with a ready and loyal army would be able to subvert democracy and impose his will on the states and the people.

Moreover, even with the best of intentions, asking the military to stand in for the police can yield disastrous results. Soldiers are trained to fight and destroy an enemy, one that generally lacks constitutional rights. As such, they are poorly suited to performing the duties of police. Forcing them into that role can increase the risk of violence. footnote17_9fi5le8 17 For examples, one need only look to the Kent State massacre in 1970 or incidents during the military deployment to Los Angeles during the 1992 riots. Howard Means, 67 Shots: Kent State and the End of American Innocence (Boston: Da Capo Press, 2016); and Jim Newton, “Did Bill Barr Learn the Wrong Lesson from the L.A. Riots?,” Politico , June 9, 2020, https://www.politico.com/news/magazine/2020/06/09/william-barr-los-angeles-riots-307446. In the words of a Minnesota National Guard member facing deployment in response to the protests that followed the murder of George Floyd: “We’re a combat unit not trained for riot control or safely handling civilians in this context. Soldiers up and down the ranks are scared about hurting someone.” footnote18_3snsx0j 18 Ken Klippenstein, “Exclusive: The Military Is Monitoring Protests in 7 States,” Nation , May 30, 2020, https://www.thenation.com/article/society/national-guard-defense-department-protests/.

Part IV: Martial Law is Constrained by the Constitution and Subject to Judicial Review

Even if Congress were to authorize martial law, and the Supreme Court were to uphold its power to do so, the Constitution would still apply. Congress, the president, and the Supreme Court are bound at all times by the Constitution and possess only the powers it confers. None of those powers allows the government to suspend or violate constitutional rights by martial law or by any other means. On the contrary, as the Supreme Court explained in Milligan , “the Constitution of the United States is a law for rulers and people, equally in war and in peace, and covers with the shield of its protection all classes of men, at all times, and under all circumstances.” footnote1_6eoreod 1 Milligan , 71 U.S. at 120–21; and Boumediene , 553 U.S. at 798 (“Liberty and security can be reconciled; and in our system they are reconciled within the framework of the law.”).

The Constitution allows Congress to suspend habeas corpus, but every other right it guarantees is intentionally left “forever inviolable.” footnote2_b3u7lfw 2 Milligan , 71 U.S. at 126. There is no constitutional procedure for suspending the First Amendment’s protection of free expression, the Fourth Amendment’s prohibition on “unreasonable searches and seizures,” the Fifth and Sixth Amendment rights to trial by jury and the assistance of a lawyer, or the Fifth Amendment right not to “be deprived of life, liberty, or property, without due process of law.”

For the most part, however, the rights conferred by the Constitution are not absolute. When courts decide whether those rights have been violated, they consider the circumstances —including not only the impact on the individual whose rights are affected, but also the interests of the government — and there is often a balancing involved. footnote3_uou0zkl 3 United States v. Knights, 534 U.S. 112, 118–19 (2001) (“The touchstone of the Fourth Amendment is reasonableness, and the reasonableness of a search is determined by assessing, on the one hand, the degree to which it intrudes upon an individual’s privacy and, on the other, the degree to which it is needed to promote legitimate governmental interests.”); Sable Communications v. FCC, 492 U.S. 115, 126 (1989) (“The Government may . . . regulate the content of constitutionally protected speech in order to promote a compelling interest if it chooses the least restrictive means to further the articulated interest.”); and Moyer , 212 U.S. at 84 (“[W]hat is due process of law depends on circumstances.”). In the kind of emergency that would justify the declaration of martial law, the government might not have to provide the same comprehensive procedures required in ordinary times before detaining someone or confiscating property. But the right to due process remains, along with all other constitutional rights, and the federal courts have the power to decide whether they have been violated. footnote4_u4rcw5d 4 Boumediene , 553 U.S. 723; Hamdan , 548 U.S. 557; and Hamdi , 542 U.S. 507.

The Supreme Court, without actually endorsing the federal government’s power to declare martial law, has established that such declarations are subject to judicial review. At a minimum, in a state or territory that the federal government has placed under martial law, individuals who have been detained by the military may ask a federal court to order their release by petitioning for the writ of habeas corpus. footnote5_h4pf8wa 5 Duncan , 327 U.S. at 307, 324; and Milligan , 71 U.S. at 130–31. A court that considers an individual’s petition can decide whether the declaration of martial law was constitutionally permissible. footnote6_w4txfhg 6 Milligan , 71 U.S. at 126–27. The reviewing court can also decide whether the military’s particular actions — such as the decision to arrest and detain the person petitioning for habeas corpus — have violated the Constitution or exceeded the powers granted by the statute (if any) that authorized martial law. footnote7_acsoweu 7 Duncan , 327 U.S. at 324; and Milligan , 71 U.S. at 130–31.

When determining whether the military has exceeded its statutory authority, courts will construe that authority narrowly. This rule derives from the Supreme Court’s decision in Duncan . Usually, the term martial law refers to the military taking the place of civilian authorities. But in Duncan , the Court held that simply putting the words “martial law” in a statute is not sufficient to authorize such extreme measures. The Court explained that martial law has never been precisely or conclusively defined. It emphasized the importance of the “traditional boundaries” between military and civilian power in the United States, and identified three basic principles that make up those boundaries: first, that the military must remain subordinate to civilian control and the law; second, that it may only assist civilian authorities when it is deployed domestically; and, third, that it may neither interfere with nor usurp the roles of the legislature or the judiciary. footnote8_fxyo919 8 Duncan , 327 U.S. at 319–24.

The Court concluded that, because these principles are deeply engrained in U.S. law and institutions, any law that purports to abridge them must be clear and specific about how they may be abridged. For instance, a statute might expressly authorize the use of military tribunals to try civilians in areas where an invasion has resulted in the closure of the courts and the government has declared martial law. If that specificity is lacking — if the statute or its legislative history do not define what Congress meant by martial law — then courts will assume that Congress intended only to authorize the military to “act vigorously for the maintenance of an orderly civil government and for the defense of the [area] against actual or threatened rebellion or invasion.” footnote9_j7ac39o 9 Duncan , 327 U.S. at 324.

Part V: What About the States?

The law governing states’ use of martial law is comparatively simple. The Supreme Court has expressly held that individual states have the power to declare martial law. footnote1_gas3d16 1 Luther , 48 U.S. at 45–46. The Posse Comitatus Act does not apply to the states and thus does not affect their ability to use their military forces for domestic law enforcement. footnote2_9f7xm39 2 Elsea, Posse Comitatus Act , 61–62n419. Instead, a state declaration of martial law is valid simply if it is authorized by the constitution or laws of the state. footnote3_mp1gzb1 3 Sterling , 287 U.S. at 403–4; Moyer , 212 U.S. at 84–85; and Luther , 48 U.S. at 45–46.

But this does not mean that states can do whatever they want. The Supremacy Clause establishes that the U.S. Constitution, federal laws, and treaties constitute “the supreme Law of the Land,” meaning that states have no authority to override them. footnote4_8bmz8zk 4 U.S. Const. art. VI, § 2. The Supreme Court has emphasized that even under martial law, state officials are bound both by the U.S. Constitution and by valid federal laws. footnote5_0p4qkm3 5 Sterling , 287 U.S. at 398 (explaining that declaring martial law provides no escape “from the paramount authority of the Federal Constitution”). If individuals wish to challenge a state declaration of martial law, they may seek injunctive relief in federal court — or, if they have been detained, they may petition for the writ of habeas corpus. footnote6_awdli18 6 Sterling , 287 U.S. at 403–4 (enjoining the state from using martial law, military force, or any other means to enforce an invalidating oil production regulation); and Moyer , 212 U.S. 78 (ruling on a habeas petition where petitioner was detained by military forces acting under martial law). The reviewing court will show great deference to a state governor’s determination that the situation required a declaration of martial law. footnote7_j4y4sda 7 Moyer , 212 U.S. at 83–85. Justice Holmes derived this rule from two earlier Supreme Court decisions: Luther , 48 U.S. 1, and Martin v. Mott, 25 U.S. 19 (1827). See also Sterling , 287 U.S. at 397–401. However, the court will examine whether any military actions taken under that declaration have run afoul of the Constitution or federal law. footnote8_mp7552t 8 Sterling , 287 U.S. at 400–401 (“What are the allowable limits of military discretion, and whether or not they have been overstepped in a particular case, are judicial questions.”).

On that question, the Supreme Court ruled in Moyer v. Peabody and Sterling v. Constantin that actions taken under state martial law are valid if they are “conceived in good faith, in the face of the emergency, and [are] directly related to the quelling of the disorder or the prevention of its continuance.” footnote9_6hrphgy 9 Sterling , 287 U.S. at 399–400; and Moyer , 212 U.S. at 85. This “good faith/direct relationship” standard could be read to imply that state officials may take actions under martial law that would in other circumstances violate the Constitution. In other words, it suggests that in an emergency, good faith and a direct relationship between means and ends are enough to satisfy the Due Process Clause of the Fourteenth Amendment.

However, the “good faith/direct relationship” standard from Sterling and Moyer is more appropriately read as a floor than as a ceiling. Both cases certainly suggest that a state’s actions would be invalid if they were made in bad faith or were not directly related to quelling the disturbance that precipitated them. But it is not clear that good faith and a direct relationship alone would be enough to satisfy due process or other constitutional requirements today. Moyer and Sterling are very old cases. Decided in 1909 and 1932, respectively, they predate virtually all of the Supreme Court’s modern due process and civil rights case law. footnote10_dbhbtg4 10 Skinner v. Oklahoma, 316 U.S. 535 (1942); Cooper v. Aaron, 358 U.S. 1 (1958); Mapp , 367 U.S. 643; Massiah , 377 U.S. 201; Griswold , 381 U.S. 479; Miranda , 384 U.S. 436; Loving v. Virginia, 388 U.S. 1 (1967); Department of Agriculture v. Moreno, 413 U.S. 528 (1973); Mathews v. Eldridge, 424 U.S. 319 (1976); Cleburne v. Cleburne Living Center, Inc., 473 U.S. 432 (1985); Romer v. Evans, 517 U.S. 620 (1996); Hamdi , 542 U.S. 507; Hamdan , 548 U.S. 557; and Boumediene , 553 U.S. 723. Under those precedents, it is likely that the Court would apply a more demanding standard of review.

The law governing martial law is complicated and unsettled, but a few principles can be found in the Supreme Court’s rulings on this topic and on the limits of executive power more generally. The Constitution gives Congress authority to regulate the domestic deployment of the military, and Congress has enacted comprehensive legislation in that area. Because that legislation does not include authorization for the president to impose martial law, the president has no power to do so. Even if Congress were to provide authorization, the Supreme Court has not conclusively decided that the federal government is constitutionally empowered to declare martial law. But it is clear that such a power, if it existed, would have to be exercised within the bounds of the Constitution, and the military’s actions would be subject to judicial review.

The state martial law power is more clearly established, but there are significant limits. States may declare martial law whenever it is authorized by state law, and federal courts are likely to defer to a state governor’s decision that doing so was necessary. However, the Constitution and valid federal laws will still constrain states’ conduct under the declaration, and judicial review will be available in federal court.

The exact scope and limits of martial law will thus remain dangerously unclear until Congress and state legislatures enact new laws that better define them.

Beyond this, the Supreme Court precedent is too old, sparse, and inconsistent to provide any certainty around martial law. Indeed, in the absence of legislation specifically addressing martial law, even the above principles are subject to competing interpretations and would likely be disputed by executive officials seeking to use military forces more aggressively. The exact scope and limits of martial law will thus remain dangerously unclear until Congress and state legislatures enact new laws that better define them.

Moreover, even without the power to declare martial law, the president still has extensive authority to deploy the military domestically to perform law enforcement functions. The Insurrection Act — and possibly Title 32 as well — leave it almost entirely up to the president to decide when and where to use U.S. armed forces at home against Americans. To some observers, a deployment of troops under the Insurrection Act might look and feel very much like martial law. Given the degree of confusion over the term, some within the media or the government itself might even call it martial law. Although that label would be inaccurate and the military’s authority would be substantially less extensive than under martial law, the fact remains that any use of U.S. armed forces as a domestic police force represents a departure from American tradition and carries inherent risks. Thus, as with martial law, Congress urgently needs to pass legislation clarifying and limiting the president’s powers under the Insurrection Act and Title 32.

Acknowledgments

The author would like to thank the Brennan Center’s Elizabeth Goitein for her invaluable guidance, comments, and suggestions, as well as Mireya Navarro, Tim Lau, Stephanie Sykes, Jeanne Park, Matthew Harwood, Ryan Witcombe, and Justin Charles for their outstanding communications support. Sahil Singhvi, Victoria Ochoa, Rachel Lesser, Aleena Nasir, Amelia Shapiro, and Sheel Patel deserve special thanks for their diligent research efforts, which made this report possible.

The author would also like to thank professors Steve Vladeck, Bill Banks, and Jeff Powell. The knowledge and insight they contributed through conversations and correspondence greatly benefited the report.

The Brennan Center gratefully acknowledges The Bauman Foundation, CS Fund/Warsh-Mott Legacy, Democracy Fund, The Endeavor Foundation, Inc., The William and Flora Hewlett Foundation, and Open Society Foundations for their generous support of our work.

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Home — Essay Samples — Government & Politics — Philippine Government — Ferdinand Marcos as a Leader: Impact of Martial Law on Philippines

Ferdinand Marcos as a Leader: Impact of Martial Law on Philippines

Categories: Leader Philippine Government Philippines

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Published: Aug 31, 2023

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Introduction, ferdinand marcos: golden era illusion, dark legacy of ferdinand marcos as a leader.

Amnesty International. (1982). 'The Philippines: Torture in the Marcos Era.' Retrieved from https://www.amnesty.org/en/library/info/ASA35/001/1982/en.
World Bank Data. (1980s). Retrieved from World Bank database.
National Historical Commission of the Philippines. (n.d.). 'The Martial Law Years.' Retrieved from https://www.nhcp.gov.ph/resources/online-resources/martial-law-years/.

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Essay on Martial Law

Students are often asked to write an essay on Martial Law in their schools and colleges. And if you’re also looking for the same, we have created 100-word, 250-word, and 500-word essays on the topic.

Let’s take a look…

100 Words Essay on Martial Law

What is martial law.

Martial Law is when the military takes control of the normal administration of a place. This usually happens during emergencies, like wars or natural disasters. It means the army can make rules, and people must follow them or face strict punishment.

Why is Martial Law Declared?

Leaders declare Martial Law to maintain peace and order when things get very chaotic. They believe the military can handle the situation better than the usual police or government bodies during such times.

Effects on People

Under Martial Law, people’s freedom can be limited. They may have to follow curfews, and sometimes they cannot say what they think or gather in groups.

Ending Martial Law

Martial Law does not last forever. It is supposed to end when the emergency is over, and things are back to normal. Then, the regular government takes back control, and laws are as they were before.

250 Words Essay on Martial Law

Martial law is when the military takes over the government’s job of running a country or area. This usually happens during big emergencies or when there’s a lot of trouble in a country, like a war or natural disaster. During martial law, the usual laws that people follow every day are replaced by military control, and the rights of people can be limited.

Leaders might declare martial law to keep peace and order when things get really bad. For example, if there’s a huge riot or the country is being attacked by another country, the government might feel it needs the strict control of the military to keep everyone safe.

Life Under Martial Law

When martial law is in place, life can change a lot for people. They might have a curfew, which means they have to be home by a certain time. They might not be able to gather in big groups or say what they think about the government. Sometimes, the military might also take over things like newspapers and TV stations.

Martial law doesn’t last forever. It’s supposed to be a temporary solution until the country can return to normal. Eventually, the government decides to end martial law, and the usual rules come back into place. People hope that by then, the country is safer and more stable.

500 Words Essay on Martial Law

Martial law is a strict type of rule used by a government in times of great trouble or during a war. When a country declares martial law, it means that the normal laws and rights people have are put on hold. Instead, the military takes control and has the power to make new rules and enforce them very strictly.

Governments may declare martial law for various reasons. Sometimes, it is because of a natural disaster like a huge earthquake. Other times, it might be because of a war or when people in the country are fighting against each other and there is a lot of violence. The main idea is to return peace and order when things are very bad and regular police cannot handle the situation.

What Happens Under Martial Law?

Under martial law, the military has a lot of power. Soldiers can be seen patrolling the streets. They can make arrests and run courts to judge crimes. Regular things like going out at night or even speaking against the government can be stopped. The military can also take over important places like airports or bridges to keep control.

Effects on People’s Lives

When martial law is in place, people’s lives can change a lot. They might have a curfew, which means they have to be home by a certain time in the evening and cannot go out until morning. They might need special permission to travel or have limits on how many people can meet together. Sometimes, the internet, newspapers, and TV are controlled or stopped so that only the government’s side of the story is heard.

Examples from History

In history, there have been many times when martial law was used. For example, during World War II, some countries used martial law to keep things in order. In the United States, martial law has been used in certain places during big riots or after a natural disaster. Each time, the goal was to make sure people were safe and to fix the problems that caused the trouble.

Martial law does not last forever. It is supposed to be a temporary way to deal with a big problem. Once the problem is under control, the government is supposed to end martial law and bring back the normal laws and rights. Sometimes this happens quickly, but other times it can take a while, especially if the trouble is hard to fix.

In conclusion, martial law is a serious step a government can take to deal with big problems. It gives the military the power to keep peace and order when regular laws are not enough. While it can help in dangerous times, it also changes how people live and can limit their freedom. It is important for martial law to be used carefully and only for as long as it is absolutely necessary.

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Remembering Martial Law: An Eco-System of Truth Initiatives and the Emergence of Narrative Documentation in the Philippines

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Tine Destrooper, Remembering Martial Law: An Eco-System of Truth Initiatives and the Emergence of Narrative Documentation in the Philippines, International Journal of Transitional Justice , Volume 17, Issue 3, November 2023, Pages 370–387, https://doi.org/10.1093/ijtj/ijad025

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In the Philippines, governmental and civil society actors installed a range of mechanisms to deal with violent legacies of the Marcos regime. Formal truth-telling mechanisms were, however, not part of the early transitional justice architecture, meaning that truth-seeking initially took place as part of other justice efforts. Nonetheless, more recently, a boom in truth, documentation and memorialization processes has resulted in a dynamic eco-system of formal and informal truth initiatives, dealing with Martial Law as well as other violent legacies. This article argues that this eco-system of truth initiatives underlines the importance and potential of foregrounding the dissemination of truths through a decentralized approach to truth-telling, as well as the potential of ‘narrative documentation’ in doing so. I then explore how this eco-systemic approach to truth-telling, and the narrative documentation used as part of it, can be a meaningful strategy in the face of ongoing disinformation campaigns.

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Constitutional Topic: Martial Law

The Constitutional Topics pages at the USConstitution.net site are presented to delve deeper into topics than can be provided on the Glossary Page or in the FAQ pages . This Topic Page concerns Martial Law. Martial law is not explicitly mentioned in the Constitution, but the suspension of habeas corpus is mentioned in Article 1, Section 9 , and the activation of the militia in time of rebellion or invasion is mentioned in Article 1, Section 8 . The Topic Page for Military Justice may also be of interest.

The sources for this topic are, primarily, The Living U.S. Constitution by Saul Padover and Jacob Landynski (Meridian, 1995); Constitutional Law: Cases and Commentary by Daniel Hall (Lawyer's Cooperative Publishing, 1997); and ex parte Milligan , 71 US 2.

Note: please note the spelling of "martial law." A common mistake is to spell it as "marshal law" or "marshall law." A "marshal" is a law enforcement officer of, for example, the U.S. Marshal Service. There is such a thing as a marshal, but no such thing as marshal law.

Introduction

ex parte Milligan

Examples of Martial Law

In strict dictionary terms , martial law is the suspension of civil authority and the imposition of military authority. When we say a region or country is "under martial law," we mean to say that the military is in control of the area, that it acts as the police, as the courts, as the legislature. The degree of control might vary - a nation may have a civilian legislature but have the courts administered by the military. Or the legislature and courts may operate under civilian control with a military ruler. In each case, martial law is in effect, even if it is not called "martial law."

Martial law should not be confused with military justice . In the United States, for example, each branch of the military has its own judicial structures in place. Members of the service are under the control of military law, and in some cases civilians working for or with the military may be subject to military law. But this is the normal course of business in the military. Martial law is the exception to the rule. In the United States, the military courts were created by the Congress, and cases can be appealed out of the military system to the Supreme Court in many cases. In addition, a civilian court can petition the military for habeas corpus.

Article 1, Section 9 states, "The privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it." Habeas corpus is a concept of law, in which a person may not be held by the government without a valid reason for being held. A writ of habeas corpus can be issued by a court upon a government agency (such as a police force or the military). Such a writ compels the agency to produce the individual to the court, and to convince the court that the person is being reasonably held. The suspension of habeas corpus allows an agency to hold a person without a charge. Suspension of habeas corpus is often equated with martial law.

Because of this connection of the two concepts, it is often argued that only Congress can declare martial law, because Congress alone is granted the power to suspend the writ. The President, however, is commander-in-chief of the military, and it has been argued that the President can take it upon himself to declare martial law. In these times, Congress may decide not to act, effectively accepting martial law by failing to stop it; Congress may agree to the declaration, putting the official stamp of approval on the declaration; or it can reject the President's imposition of martial law, which could set up a power struggle between the Congress and the Executive that only the Judiciary would be able to resolve.

In the United States, there is precedent for martial law. Several times in the course of our history, martial law of varying degrees has been declared. The most obvious and often-cited example was when President Lincoln declared martial law during the Civil War. This instance provides us with most of the rules for martial law that we would use today, should the need arise.

On September 15, 1863, Lincoln imposed Congressionally-authorized martial law. The authorizing act allowed the President to suspend habeas corpus throughout the entire United States. Lincoln imposed the suspension on "prisoners of war, spies, or aiders and abettors of the enemy," as well as on other classes of people, such as draft dodgers. The President's proclamation was challenged in ex parte Milligan (71 US 2 [1866]). The Supreme Court ruled that Lincoln's imposition of martial law (by way of suspension of habeas corpus) was unconstitutional.

In arguments before the Court, the counsel for the United States spoke to the question of "what is martial law?" "Martial law," it was argued, "is the will of the commanding officer of an armed force, or of a geographical military department, expressed in time of war within the limits of his military jurisdiction, as necessity demands and prudence dictates, restrained or enlarged by the orders of his military chief, or supreme executive ruler." In other words, martial law is imposed by a local commander on the region he controls, on an as-needed basis. Further, it was argued, "The officer executing martial law is at the same time supreme legislator, supreme judge, and supreme executive. As necessity makes his will the law, he only can define and declare it; and whether or not it is infringed, and of the extent of the infraction, he alone can judge; and his sole order punishes or acquits the alleged offender."

In this case, Lambden Milligan, for whom the case is named, was arrested in Indiana as a Confederate sympathizer. Indiana, like the rest of the United States, was part of a military district set up to help conduct the war. Milligan was tried by military commission and sentenced to die by hanging. After his conviction, Milligan petitioned the Circuit Court for habeas corpus, arguing that his arrest, trial, and conviction were all unconstitutional. What the Supreme Court had to decide, it said, was "Had [the military commission] the legal power and authority to try and punish [Milligan]?"

Resoundingly, the Court said no. The Court stated what is almost painfully obvious: "Martial law ... destroys every guarantee of the Constitution." The Court reminded the reader that such actions were taken by the King of Great Britain, which caused, in part, the Revolution. "Civil liberty and this kind of martial law cannot endure together; the antagonism is irreconcilable; and, in the conflict, one or the other must perish."

Did this mean that martial law could never be implemented? No, the Court said. The President can declare martial law when circumstances warrant it: When the civil authority cannot operate, then martial law is not only constitutional, but would be necessary: "If, in foreign invasion or civil war, the courts are actually closed, and it is impossible to administer criminal justice according to law, then, on the theatre of active military operations, where war really prevails, there is a necessity to furnish a substitute for the civil authority, thus overthrown, to preserve the safety of the army and society; and as no power is left but the military, it is allowed to govern by martial rule until the laws can have their free course. As necessity creates the rule, so it limits its duration; for, if this government is continued after the courts are reinstated, it is a gross usurpation of power. Martial rule can never exist where the courts are open, and in the proper and unobstructed exercise of their jurisdiction. It is also confined to the locality of actual war."

Through out United States history are several examples of the imposition of martial law, aside from that during the Civil War.

During the war of 1812, General Andrew Jackson imposed martial law within his encampment at New Orleans, which he had recently liberated. Martial law was also imposed in a four mile radius around the camp. When word came of the end of the war, Jackson maintained martial law, contending that he had not gotten official word of the peace. A judge demanded habeas corpus for a man arrested for sedition. Rather than comply with the writ, Jackson had the judge arrested. After the civil authority was restored, the judge fined Jackson $1000, which he paid, and for which the Congress later reimbursed Jackson.

In 1892, at Coeur d'Alene, Idaho, rebellious mine workers blew up a mill and shot at strike-breaking workers. The explosion leveled a four-story building and killed one person. Mine owners asked the governor to declare martial law, which he did. At the same time, a request was made for federal troops to back guardsmen. Over 600 people were arrested. The list was whittled down to two dozen ring leaders who were tried in civil court. While in prison, the mine workers formed a new union, the Western Federation of Miners.

In 1914, imposition of martial law climaxed the so-called Coal Field Wars in Colorado. Dating back decades, the conflicts came to a head in Ludlow in 1913. The Colorado National Guard was called in to quell the strikers. For a time, the peace was kept, but it is reported that the make-up of the Guard stationed at the mines began to shift from impartial normal troops to companies of loyal mine guards. Clashes increased and the proclamation of martial law was made by the governor. President Wilson sent in federal troops, eventually ending the violence.

In 1934, California Governor Frank Merriam placed the docks of San Francisco under martial law, citing "riots and tumult" resulting from a dock worker's strike. The Governor threatened to place the entire city under martial law. The National Guard was called in to open the docks, and a city-wide institution of martial law was averted when goods began to flow. The guardsmen were empowered to make arrests and to then try detainees or turn them over to the civil courts.

Martial law and San Francisco were no strangers - following the earthquake of 1906, the troops stationed in the Presidio were pressed into service. Guards were posted throughout the city, and all dynamite was confiscated. The dynamite was used to destroy buildings in the path of fires, to prevent the fires from spreading. Troops were ordered to shoot looters. Though there was never an official declaration of martial law, the event is often cited as such. However, at all times it appears the troops took their orders indirectly from the civil authority.

Though not a state at the time, Hawaii was placed under martial law in 1941, following the Japanese attack on Pearl Harbor. Many of the residents of Hawaii were, and are, of Asian descent, and the loyalty of these people was called into question. After the war, the federal judge for the islands condemned the conduct of martial law, saying, "Gov. Poindexter declared lawfully martial law but the Army went beyond the governor and set up that which was lawful only in conquered enemy territory namely, military government which is not bound by the Constitution. And they ... threw the Constitution into the discard and set up a military dictatorship."

On 8/26/2005, in the wake of Hurricane Katrina, New Orleans was placed under martial law after widespread flooding rendered civil authority ineffective. The state of Louisiana does not have an actual legal construct called "martial law," but instead something quite like it: a state of public health emergency. The state of emergency allowed the governor can suspend laws, order evacuations, and limit the sales of items such as alcohol and firearms. The governor's order limited the state of emergency, to end on 9/25/2005, "unless terminated sooner."

There have been many instances of the use of the military within the borders of the United States, such as during the Whiskey Rebellion and in the South during the civil rights crises, but these acts are not tantamount to a declaration of martial law. The distinction must be made as clear as that between martial law and military justice: deployment of troops does not necessarily mean that the civil courts cannot function, and that is one of the keys, as the Supreme Court noted, to martial law.

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[OPINION] Never again, never forget: The violent memory of Martial Law

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[OPINION] Never again, never forget: The violent memory of Martial Law

September marks the anniversary of a turbulent, violent, and painful memory in Philippine history – Ferdinand E. Marcos’ Martial Law. This year, in particular, denotes the 50 th anniversary of its declaration.

“Never again, never forget,” we chant to remember, to commemorate, to fight.

But for those of us who weren’t alive during the time, pro-Marcos Filipinos always throw the argument, “ ’Di pa naman kayo pinapanganak nun, paano ‘nyo alam? ” (You weren’t born then so how do you know?)

And as retaliated by many, the younger generation’s memory of Martial Law comes from different sources, like their family’s personal stories, lessons taught in history class, artworks based on or made during the time period, news clippings from media outlets. The memory of something does not need to be experienced firsthand for people to express empathy and solidarity.

And so, based on various sources, here is why we must not forget.

Marcos started his political career in 1949 as a congressman in Ilocos Norte. He became a senator in 1959 and finally, the president in 1965. When he ran for president, he campaigned with his wife, the “endearing” Imelda Marcos. Imelda, as a beauty queen who sang for the crowd, was a vote-getter . They campaigned together which earned them patronage from the people. It’s not difficult to see why the Filipinos loved them – aside from Marcos being from the north and Imelda being from the Visayas – they were seen as a couple, a love team people could root for. To be a little blasphemous about it, they can be juxtaposed with KathNiel, AlDub, LizQuen or JaDine.

However, Ferdie and Imelda’s identities went beyond this swooning couple, and beyond the praise that people gave them. Firstly, Marcos’ character was questionable. He presented himself as the country’s “most decorated war hero” but this was proven to be untrue . To have most of his appeal come from a lie is already questionable. In addition to this, during the 1986 snap elections, vote tabulators from the Commission on Elections or Comelec walked out as they noticed superiors manipulating the vote count to put Marcos in the lead. This packs on the deceit that Marcos upheld as a leader. What do we expect from a president who repressed the media so that his failures and atrocities remain unknown anyway?

Corruption and human rights during Martial Law

Aside from mere lies, Primitivo Mijares wrote in his book, The Conjugal Dictatorship of Ferdinand and Imelda Marcos , “The corruption of the martial regime is not confined to the insatiable acquisition of the country’s material resources, but extends to the exercise of power itself. Having proclaimed martial law, he proceeded to bribe, coerce and/or intimidate the Constitutional Convention members into drafting a new charter dictated by him.” Aside from corruption of funds and resources, Marcos’ propagandist-turned-whistleblower Mijares confirmed the late dictator’s greed for power. He didn’t want his term to end which led to the declaration of Martial Law.

However, as terrible as this already sounds, from lies to theft to repression to corruption, the history of Martial Law gets worse as we dig deeper. While corruption ensued, media was repressed, cronies were favored, lies were propagated, shoes were collected, Filipinos’ human rights were also being directly violated.

According to an Amnesty International report that documents the human rights abuses during Martial Law, there are around 3,240 known extrajudicial killings, 34,000 documented tortures, 70,000 imprisonments, and 77 recorded disappearances. It’s important to note that these are just the recognized ones, meaning that the numbers are even higher when we consider the cases that went unrecorded. With these large statistics, we must remind ourselves that Martial Law victims are more than just numbers. These are fellow Filipinos, most of them political rivals, student activists, journalists, religious workers, farmers, peasant organizers; most of them fought the dictator.

The Marcoses’ corrupt desire for power led to all of this. To make it even more concrete, Mijares himself, who used to be Marcos’ most trusted confidante, was one of the victims. After turning against the Marcoses, he disappeared and was never found, while his son, Luis Manuel Mijares, was killed shortly after. They are just two of the thousands of victims who were either killed or who continue to be scarred by their past.

Sources of a collective memory

Many works continue to record this history of human rights abuses during Martial Law, not just through documents but also through art. Desaparesidos , a novel by Lualhati Bautista, chronicles the experience of a desaparecido , who was tortured and eventually incarcerated. It follows the life of a mother who finds it hard to move past the pain brought by Marcos’ Martial Law. Liway , a film by Kip Oebanda, shows a family who spent years in prison together because they fought against the Marcoses. ML, a film by Benedict Mique, depicts the level of brutality of the state force during Martial Law. Indigo Child , a play by Rody Vera, shows the scars that remain even years after a victim is tortured and how this can cause rifts in the family.

These are just a few examples and sources to get started with, which already show that we do not need to have been there to stand against the untruths and injustices. But after hearing how atrocious, violent, and scarring Martial Law is, why must we never forget? Would it not be easier if we did?

There are numerous victims who continue to find it hard to recount their experiences, and this is completely understandable. We should not dictate on individuals who have been abused and violated in unimaginable ways on how to deal with their trauma. However, collectively as a Filipino people, in solidarity with all the victims who choose to continue to speak out or can’t, we must never forget. We must never forget because it is disrespect for those who fought so that we may be free from the clutches of the Marcos dictatorship. To remember is to memorialize those who sacrificed their safety and personal lives so that future generations would not suffer what they did.

It even becomes more imperative that we remember, especially now that disinformation, historical denialism, and the Marcosian myth persist. It becomes more important now that the son of the dictator again sits, sleeps, lives in, and has invaded Malacañang Palace.

We must never forget so that we may never again suffer the same fate. Ironically, they are back at the Palace, which reminds us to fight again, to continue remembering, and to speak the truth.

We find ourselves again at the precipice of history. What do we do now? Never again. Never forget. – Rappler.com

Tony La Viña teaches law and is former dean of the Ateneo School of Government. Bernardine de Belen recently graduated from the Ateneo de Manila University with a Creative Writing degree. She has just joined Manila Observatory as a research assistant.

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MIA > Archive > Pashukanis

Evgeny Pashukanis

Marksistskaia teoriia gosudarstva i prava , pp.9-44 in E. B. Pashukanis (ed.), Uchenie o gosudarstve i prave (1932), Partiinoe Izd., Moscow. From Evgeny Pashukanis, Selected Writings on Marxism and Law (eds. P. Beirne & R. Sharlet), London & New York 1980, pp.273-301. Translated by Peter B. Maggs . Copyright © Peter B. Maggs. Published here by kind permission of the translator. Downloaded from home.law.uiuc.edu/~pmaggs/pashukanis.htm Marked up by Einde O’Callaghan for the Marxists’ Internet Archive .

Introductory Note

In the winter of 1929-1930, during the first Five Year Plan, the national economy of the USSR underwent dramatic and violent ruptures with the inauguration of forced collectivization and rapid heavy industrialization. Concomitantly, it seemed, the Party insisted on the reconstruction and realignment of the appropriate superstructures in conformity with the effectuation of these new social relations of production. In this spirit Pashukanis was no longer criticized but now overtly attacked in the struggle on the “legal front”. In common with important figures in other intellectual disciplines, such as history, in late 1930 Pashukanis undertook a major self-criticism which was qualitatively different from the incremental changes to his work that he had produced earlier. During the following year, 1931, Pashukanis outlined this theoretical reconstruction in his speech to the first conference of Marxist jurists, a speech entitled Towards a Marxist-Leninist Theory of Law . The first results appeared a year later in a collective volume The Doctrine of State and Law .

Chapter I of this collective work is translated below, The Marxist Theory of State and Law , and was written by Pashukanis himself It should be noted that this volume exemplifies the formal transformations which occurred in Soviet legal scholarship during this heated period. Earlier, Pashukanis and other jurists had authored their own monographs; the trend was now towards a collective scholarship which promised to maximize individual safety. The source of authority for much of the work that ensued increasingly became the many expressions of Stalin’s interpretation of Bolshevik history, class struggle and revisionism, most notably his Problems of Leninism . Last, but not least, the language and vocabulary of academic discourse in the 1920s had been rich, open-ended and diverse, and varied tremendously with the personal preferences of the individual author; this gave way to a standardized and simplified style of prose devoid of nuance and ambiguity, and which was very much in keeping with the new theoretical content which comprised official textbooks on the theory of state and law. The reader will perhaps discover that The Marxist Theory of State and Law is a text imbued with these tensions. Pashukanis’ radical reconceptualization of the unity of form and content, and of the ultimate primacy of the relations of production, is without doubt to be preferred to his previous notions. But this is a preference guided by the advantages of editorial hindsight, and we feel that we cannot now distinguish between those reconceptualizations which Pashukanis may actually have intended and those which were produced by the external pressures of political opportunism.

CHAPTER I Socio-economic Formations, State, and Law

1. the doctrine of socio-economic formations as a basis for the marxist theory of state and law.

The doctrine of state and law is part of a broader whole, namely, the complex of sciences which study human society. The development of these sciences is in turn determined by the history of society itself, i.e. by the history of class struggle.

It has long since been noted that the most powerful and fruitful catalysts which foster the study of social phenomena are connected with revolutions. The English Revolution of the seventeenth century gave birth to the basic directions of bourgeois social thought, and forcibly advanced the scientific, i.e. materialist, understanding of social phenomena.

It suffices to mention such a work as Oceana – by the English writer Harrington, and which appeared soon after the English Revolution of the seventeenth century – in which changes in political structure are related to the changing distribution of landed property. It suffices to mention the work of Barnave – one of the architects of the great French Revolution – who in the same way sought explanations of political struggle and the political order in property relations. In studying bourgeois revolutions, French restorationist historians – Guizot, Mineaux and Thierry – concluded that the leitmotif of these revolutions was the class struggle between the third estate (i.e. the bourgeoisie) and the privileged estates of feudalism and their monarch. This is why Marx, in his well-known letter to Weydemeyer, indicates that the theory of the class struggle was known before him. “As far as I am concerned”, he wrote,

no credit is due to me for discovering the existence of classes in modern society, or the struggle between them. Long before me bourgeois historians had described the historical development of this class struggle, and bourgeois economists the economic anatomy of the classes.

What I did that was new was to prove: (1) that the existence of classes is only bound up with particular historical forms of struggle in the development of production ...; (2) that the class struggle inevitably leads to the dictatorship of the proletariat; (3) that this dictatorship itself only constitutes the transition to the abolition of all classes and the establishment of a classless society. [1]

[ Section 2 omitted – eds. ]

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3. The class type of state and the form of government

The doctrine of socio-economic formations is particularly important to Marx’s theory of state and law, because it provides the basis for the precise and scientific delineation of the different types of state and the different systems of law.

Bourgeois political and juridical theorists attempt to establish a classification of political and legal forms without scientific criteria; not from the class essence of the forms, but from more or less external characteristics. Bourgeois theorists of the state, assiduously avoiding the question of the class nature of the state, propose every type of artificial and scholastic definition and conceptual distinction. For instance, in the past, textbooks on the state divided the state into three “elements”: territory, population and power.

Some scholars go further. Kellen – one of the most recent Swedish theorists of the state – distinguishes five elements or phenomena of the state: territory, people, economy, society and, finally, the state as the formal legal subject of power. All these definitions and distinctions of elements, or aspects of the state, are no more than a scholastic game of empty concepts since the main point is absent: the division of society into classes, and class domination. Of course, the state cannot exist without population, or territory, or economy, or society. This is an incontrovertible truth. But, at the same time, it is true that all these “elements” existed at that stage of development when there was no state. Equally, classless communist society – having territory, population and an economy – will do without the state since the necessity of class suppression will disappear.

The feature of power, or coercive power, also tells one exactly nothing. Lenin, in his polemic of the 1890s with Struve asserted that: “he most incorrectly sees the distinguishing feature of the state as coercive power. Coercive power exists in every human society – both in the tribal structure and in the family, but there was no state.” And further, Lenin concludes: “The distinguishing feature of the state is the existence of a separate class of people in whose hands power is concentrated. Obviously, no one could use the term ‘State’ in reference to a community in which the ‘organization of order’ is administered in turn by all of its members.” [2]

Struve’s position, according to which the distinguishing feature of a state is coercive power, was not without reason termed “professorial” by Lenin. Every bourgeois science of the state is full of conclusions on the essence of this coercive power. Disguising the class character of the state, bourgeois scholars interpret this coercion in a purely psychological sense. “For power and subordination”, wrote one of the Russian bourgeois jurists (Lazarevsky), “two elements are necessary: the consciousness of those exercising power that they have the right to obedience, and the consciousness of the subordinates that they must obey.”

From this, Lazarevsky and other bourgeois jurists reached the following conclusion: state power is based upon the general conviction of citizens that a specific state has the right to issue its decrees and laws. Thus, the real fact-concentration of the means of force and coercion in the hands of a particular class-is concealed and masked by the ideology of the bourgeoisie. While the feudal landowning state sanctified its power by the authority of religion, the bourgeoisie uses the fetishes of statute and law. In connection with this, we also find the theory of bourgeois jurists-which now has been adopted in its entirety by the Social Democrats whereby the state is viewed as an agency acting in the interests of the whole society. “If the source of state power derives from class”, wrote another of the bourgeois jurists (Magaziner), “then to fulfil its tasks it must stand above the class struggle. Formally, it is the arbiter of the class struggle, and even more than that: it develops the rules of this struggle.”

It is precisely this false theory of the supra-class nature of the state that is used for the justification of the treacherous policy of the Social Democrats. In the name “of the general interest”, Social Democrats deprive the unemployed of their welfare payments, help in reducing wages, and encourage shooting at workers’ demonstrations.

Not wishing to recognize the basic fact, i.e. that states differ according to their class basis, bourgeois theorists of the state concentrate all their attention on various forms of government. But this difference by itself is worthless. Thus, for instance, in ancient Greece and ancient Rome we have the most varied forms of government. But all the transitions from monarchy to republic, from aristocracy to democracy, which we observe there, do not destroy the basic fact that these states, regardless of their different forms, were slave-owning states. The apparatus of coercion, however it was organized, belong to the slave-owners and assured their mastery over the slaves with the help of armed force, assured the right of the slave-owners to dispose of the labour and personality of the slaves, to exploit them, to commit any desired act of violence against them.

Distinguishing between the form of rule and the class essence of the state is particularly important for the correct strategy of the working class in its struggle with capitalism. Proceeding from this distinction, we establish that to the extent that private property and the power of capital remain untouchable, to this extent the democratic form of government does not change the essence of the matter. Democracy with the preservation of capitalist exploitation will always be democracy for the minority, democracy for the propertied; it will always mean the exploitation and subjugation of the great mass of the working people. Therefore theorists of the Second International such as Kautsky, who contrast “democracy” in general with “dictatorship”, entirely refuse to consider their class nature. They replace Marxism with vulgar legal dogmatism, and act as the scholarly champions and lackeys of capitalism.

The different forms of rule had already arisen in slave-owning society. Basically, they consist of the following types: the monarchic state with an hereditary head, and the republic where power is elective and where there are no offices which pass by inheritance. In addition, aristocracy, or the power of a minority (i.e. a state where participation in the administration of the state is limited by law to a definite and rather narrow circle of privileged persons) is distinguished from democracy (or, literally, the rule of the people), i.e. a state where by law all take part in deciding public affairs either directly or through elected representatives. The distinction between monarchy, aristocracy and democracy had already been established by the Greek philosopher Aristotle in the fourth century. All the modern bourgeois theories of the state could add little to this classification.

Actually the significance of one form or another can be gleaned only by taking into account the concrete historical conditions under which it arose and existed, and only in the context of the class nature of a specific state. Attempts to establish any general abstract laws of the movement of state forms – with which bourgeois theorists of the state have often been occupied – have nothing in common with science.

In particular, the change of the form of government depends on concrete historical conditions, on the condition of the class struggle, and on how relationships are formed between the ruling class and the subordinate class, and also within the ruling class itself

The forms of government may change although the class nature of the state remains the same. France, in the course of the nineteenth century, and after the revolution of 1830 until the present time, was a constitutional monarchy, an empire and a republic, and the rule of the bourgeois capitalist state was maintained in all three of these forms. Conversely, the same form of government (for instance a democratic republic) which was encountered in antiquity as one of the variations of the slave-owning state, is in our time one of the forms of capitalist domination.

Therefore, in studying any state, it is very important primarily to examine not its external form but its internal class content, placing the concrete historical conditions of the class struggle at the very basis of scrutiny.

The question of the relationship between the class type of the state and the form of government is still very little developed. In the bourgeois theory of the state this question not only could not be developed, but could not even be correctly posed, because bourgeois science always tries to disguise the class nature of all states, and in particular the class nature of the capitalist state. Often therefore, bourgeois theorists of the state, without analysis, conflate characteristics relating to the form of government and characteristics relating to the class nature of the state.

As an example one may adduce the classification which is proposed in one of the newest German encyclopaedias of legal science.

The author [Kellreiter] distinguishes: (a) absolutism and dictatorship, and considers that the basic characteristic of these forms is that state powers are concentrated in the hands of one person. As an example, he mentions the absolute monarchy of Louis XIV in France, tsarist autocracy in Russia and the dictatorial power which was invested by the procedure of extraordinary powers in the one person, for instance the president of the German Republic on the basis of Art.48 of the Weimar Constitution; (b) constitutionalism, characterized by the separation of powers, their independence and their checks and balances, thereby weakening the pressure exerted by state power on the individual (examples: the German Constitution before the 1918 revolution, and the USA, where the President and Congress have independent powers); (c) democracy, whose basic premise is monism of power and a denial in principle of the difference between power and the subject of power (popular sovereignty, exemplified by the German Republic); and (d) the class-corporative state and the Soviet system where as opposed to formal democracy, the people appear not as an atomized mass of isolated citizens but as a totality of organized and discrete collectives. [3]

This classification is very typical of the confusion which bourgeois scholars consciously introduce into the question of the state. Starting with the fact that the concept of dictatorship is interpreted in the formal legal sense, deprived of all class content, the bourgeois jurist deliberately avoids the question: the dictatorship of which class and directed against whom ? He blurs the distinction between the dictatorship of a small group of exploiters and the dictatorship of the overwhelming majority of the working people; he distorts the concept of dictatorship, for he cannot avoid defining it without a relevant law or paragraph, while “the scientific concept of dictatorship means nothing less than power resting directly upon force, unlimited by laws, and unconstricted by absolute rules”. [4] Further it is sufficient to indicate, for instance, that under the latter heading the author includes: (a) a new type of state, never encountered before in history, where power belongs to the proletariat; (b) the reactionary dreams of certain professors and so-called guild socialists, about the return to the corporations and shops of the Middle Ages; and, finally (c) the fascist dictatorship of capital which Mussolini exercises in Italy.

This respected scholar consciously introduces confusion, consciously ignores the concrete historical conditions under which the working people actually can exercise administration of the state, acting as organized collectives. But such conditions are only the proletarian revolution and the establishment of the dictatorship of the proletariat.

4. The class nature of law

Bourgeois science confuses the question of the essence of law no less than the question of the state. Here, Marxism-Leninism opposes the diverse majority of bourgeois, petit bourgeois and revisionist theories which, proceeding from the explanation of the historical and class nature of law, consider the state as a phenomenon essential to every human society. They thus transform law into a supra-historical category.

It is not surprising, therefore, that bourgeois philosophy of law serves as the main source for introducing confusion both into the concept of law and into the concept of state and society.

The bourgeois theory of the state is 90% the legal theory of the state. The unattractive class essence of the state, most often and most eagerly, is hidden by clever combinations of legal formalism, or else it is covered by a cloud of lofty philosophical legal abstractions.

The exposure of the class historical essence of law is not, therefore, an unimportant part of the Marxist-Leninist theory of society, of the state and of law.

The most widespread approach of bourgeois science to the solution of the question of the essence of law consists in the fact that it strives to embrace, through the concept of law, the existence of any consciously ordered human relationships, of any social rules, of any phenomenon of social authority or social power. Thus, bourgeois scholars easily transfer law to pre-class society, find it in the pre-state life of primitive tribes, and conclude that communism is unthinkable without law. They turn law as an empty abstraction into a universal concept devoid of historical content. Law, for bourgeois sociologists, becomes an empty form which is unconnected with concrete reality, with the relationships of production, with the antagonistic character of these relationships in class society, [and] with the presence of the state as a particular apparatus of power in the hands of the ruling class.

Representatives of idealist philosophy of law go still further. They begin with “the idea of law”, which stands above social history as something eternal, immutable and independent of space and time.

Here, for example, is the conclusion of one of the most important representatives of the ideological neo-Kantian philosophy of law – Stammler:

Through all the fates and deeds of man there extends a single unitary idea, the idea of law. All languages have a designation for this concept, and the direction of definitions and judgements expressed by it amount, upon careful study, to one and the same meaning.

Having made this discovery, it cost Stammler nothing “to prove” that regardless of the difference between the “life and activity of nations” and “the objects of legal consideration”, we observe the unity of the legal idea and its equal appearance and intervention.

This professorial rubbish is presented without the least attempt at factual proof In actuality it would be rather difficult to explain how this “unity of the legal idea and its equal appearance” gave birth to the laws of the Twelve Tablets of slave-owning Rome, the serf customs of the Middle Ages, the declarations of rights of capitalist democracies, and our Soviet Constitution.

But Stammler is not embarrassed by the scantiness of factual argument. He deals just as simply with the proof of the eternity of law. He begins from those legendary Cyclops described in the Odyssey; even these mythical wonders were the fathers of families and, according to Stammler, could not do without law. On the other hand, however, while Stammler is ready to admit that the pigmy tribes of Africa and the Eskimos did not know the state, he simply denies as deceptive all reports about peoples not knowing law. Moreover, Stammler immediately replaces the concrete historical consideration of the question with scholastic formal-logical tightrope walking, which among bourgeois professors is presented as a methodological precision. We present these conclusions, for they typify the whole trend and, moreover, are most fashionable in the West.

Stammler proposes that the concrete study of legal phenomena is entirely unable to provide anything in the understanding of the essence of law. For if we assign any phenomenon to the list of legal ones, this means that we already know that this is law and what its characteristics are. The definition of law which precedes the facts presupposes knowledge of what is law and what is not law. Accordingly, in the opinion of Stammler, in considering the concept of law, it is necessary to exclude all that is concrete and encountered in experience and to understand “that the legal idea is a purely methodological means for the ordering of spiritual life”.

This conclusion, which confronts one with its scholasticism, is nothing other than a Kantian ideological thesis embodied in the context of Stammler’s legal stupidity. It shows that the so-called forms of knowledge do not express the objective characteristics of matter, are determined a priori, and precede all human experience and its necessary conditions.

Having turned law into a methodological idea, Stammler tries to locate it not in the material world where everything is subordinate to the law of cause and effect, but in the area of goals. Law, according to Stammler, is a definition which proceeds not from the past (from cause to effect), but from the future (from goal to means). Finally, adding that law deals not with the internal procedure of thoughts as such, but with human interaction, Stammler gives this agonizing and thoroughly scholastic definition:

The concept of law is a pure form of thought. It methodically divides the endlessly differentiated material of human desires apprehended by the senses, and defines it as an inviolable and independent connecting will.

This professorial scholasticism has the attractive feature for the bourgeoisie that verbal and formalistic contrivances can hide the ugly reality of [their] exploiting society and exploiting law.

If law is “a pure form of thought”, then it is possible to avoid the ugly fact that the capitalist law of private property means the misery of unemployment, poverty and hunger for the proletarian and his family; and that in defence of this law stand police armed to the teeth, fascist bands, hangmen and prison guards; and that this law signifies a whole system of coercion, humiliation and oppression in colonies.

Such theories allow the disguising of the fact that the class interest of the bourgeoisie lies at the basis of bourgeois law. Instead of class law, philosophers such as Stammler dream up abstractions, “pure forms”, general human “ideas”, “whole and durable bonds of will” – and other entirely shameless things.

This philosophy of law is calculated to blunt the revolutionary class consciousness of the proletariat, and to reconcile it with bourgeois society and capitalist exploitation.

It is not without reason that the social fascists speak out as such zealous exponents of neo-Kantianism; it is not without reason that Social Democratic theorists on questions of law largely subscribe to neo-Kantian philosophy and re-hash the same Stammler in different ways.

In our Soviet legal literature, a rather wide dissemination has been achieved by bourgeois legal theories. In particular, there have been attempts to spread the idealist teaching of Stammler in the works of Pontovich and Popov-Ladyzhensky. The criticism and unmasking of this eructation is necessary for the purpose of eradicating this bourgeois ideological infection.

Thus, we know that the state is an historical phenomenon limited by the boundaries of class society. A state is a machine for the maintenance of the domination of one class over another. It is an organization of the ruling class, having at its disposal the most powerful means of suppression and coercion. Until the appearance of classes the state did not exist. In developed communism there will be no state.

In the same way as the state, law is inseparably tied to the division of society into classes. Every law is the law of the ruling class. The basis of law is the formulation and consolidation of the relationship to the means of production, owing to which in exploitative society, one part of the people can appropriate to itself the unpaid labour of another.

The form of exploitation determines the typical features of a legal system. In accordance with the three basic socio-economic formations of class society, we have three basic types of legal superstructure: slave-owning law, feudal law and bourgeois law. This of course does not exclude concrete historical national differences between each of the systems. For instance, English law is distinguished by many peculiarities in comparison with French bourgeois law as contained in the Napoleonic Code . Likewise, we do not exclude the presence of survivals of the past – transitional or mixed forms – which complicate the concrete picture.

However, the essential and basic – that which provides the guiding theme for the study of different legal institutions – is the difference between the position of the slave, the position of the serf and the position of the wage labourer. The relationship of exploitation is the basic lynchpin, around which all other legal relationships and legal institutions are arranged. From this it follows that the nature of property has decisive significance for each system of law. According to Lenge, the brilliant and cynical reactionary of the eighteenth century, the spirit of the laws is property.

5. Law as an historical phenomenon: definition of law

The appearance and withering away of law, similar to the appearance and withering of the state, is connected with two extremely important historical limitations. Law (and the state) appears with the division of society into classes. Passing through a long path of development, full of revolutionary leaps and qualitative changes, law and the state will wither away under communism as a result of the disappearance of classes and of all survivals of class society.

Nevertheless, certain authors, who consider themselves Marxists, adopt the viewpoint that law exists in pre-class society, that in primitive communism we meet with legal forms and legal relationships. Such a point of view is adopted for instance by Reisner. Reisner gives the term “law” to a whole series of institutions and customs of tribal society: marriage taboos and blood feud, customs regulating relationships between tribes, and customs relating to the use of the means of production belonging to a tribe. Law in this manner is transformed into an eternal institution, inherent to all forms of human society. From here it is just one step to the understanding of law as an eternal idea; and Reisner in essence leans towards such an understanding.

This viewpoint of course fundamentally contradicts Marxism. The customs of a society not knowing class divisions, property inequality and exploitation, differ qualitatively from the law and the statutes of class society. To categorize them together means to introduce an unlikely confusion. Every attempt to avoid this qualitative difference inevitably leads to scholasticism, to the purely external combination of phenomena of different types, or to abstract idealist constructs in the Stammlerian spirit.

We should not be confused by the fact that Engels, in The Origin of the Family, Private Property and the State , uses the expression “the eternal law”; or, that he cites, without particular qualification, Morgan’s description of the member of a tribal community as having “equality of rights”, and of a person violating tribal customs as having placed himself “outside the law”.

It is clear that the terms “right” and “law” are used here not in their direct sense, but by analogy. This does not mean, however, that in classless society we will be dealing only with purely technical rules. Such an argument was put forward by Stuchka in his dispute with Reisner. To assign the customs and the norms of pre-class society to the area of technology would mean to give the concept of technology a very extended and undefined sense. Marriage prohibitions, customs relating to the organization of the tribe, the power of the elders, blood feud etc. – all this of course is not technology and not technical methods, but the customs and norms of social order. The content and character of these customs corresponded of course to the level of productive forces and the production relationships erected on it. These social forms should be considered as a superstructure upon the economic base. But the basic qualitative difference between this superstructure and the political and legal superstructures of class society, consists in the absence of property inequality, exploitation, and organized class coercion.

While Marxism strives to give a concrete historical meaning to law, the characteristic feature of bourgeois philosophers of law is, on the contrary, the conclusion that law in general is outside classes, outside any particular socio-economic formation. Instead of deriving a concept of law from the study of historical facts, bourgeois scholars are occupied with the concoction of theories and definitions from the empty concept or even the word “law”.

We already saw how Stammler, with the help of scholastic contrivances, tries to show that concrete facts have no significance for the definition of law. We, however, say the opposite. It is impossible to give a general definition of law without knowing the law of slave-owning, feudal and capitalist societies. Only by studying the law of each of these socio-economic formations can we identify those characteristics which are in fact most general and most typical. In doing so we must not forget Engels’ warning to those who tend to exaggerate the significance of these general definitions.

For example, in Chapter VI of the first part of Anti-Dühring , having given a definition of life, Engels speaks of the inadequacy of all definitions because they are necessarily limited to the most general and simplistic areas. In the preface to Anti-Dühring , Engels formulated this thought still more clearly, indicating that “the only real definition is the development of the essence of the matter, and that is not a definition”. However, Engels at once states that for ordinary practical use, definitions which indicate the most general and characteristic features of a category are very convenient. We cannot do without them. It is also wrong to demand more from a definition than it can give; it is wrong to forget the inevitability of its insufficiency.

These statements by Engels should be kept in mind in approaching any general definition, including a definition of law. It is necessary to remember that it does not replace, and cannot replace, the study of all forms and aspects of law as a concrete historical phenomenon. In identifying the most general and characteristic features we can define law as the form of regulation and consolidation of production relationships and also of other social relationships of class society; law depends on the apparatus of state power of the ruling class, and reflects the interests of the latter.

This definition characterizes the role and significance of law in class society. But it is nevertheless incomplete. In contradistinction to all normative theories – which are limited to the external and formal side of law (norms, statutes, judicial positions etc.) – Marxist-Leninist theory considers a law as a unity of form and content. The legal superstructure comprises not only the totality of norms and actions of agencies, but the unity of this formal side and its content, i.e. of the social relationships which law reflects and at the same time sanctions, formalizes and modifies. The character of formalization does not depend on the “free will of the legislator”; it is defined by economics, but on the other hand the legal superstructure, once having arisen, exerts a reflexive effect upon the economy.

This definition stresses three aspects of the matter. First is the class nature of law: every law is the law of the ruling class. Attempts to consider law as a social relationship which transcends class society, lead either to superficial categorization of diverse phenomena, or to speculative idealistic constructs in the spirit of the bourgeois philosophy of law. Second is the basic and determinant significance of production relationships in the content that is implemented by law. Class interests directly reflect their relationship to the means of production. Property relationships occupy the prominent place in the characterization of a specific legal order. Communist society, where classes disappear, where labour becomes the primary want, where the effective principle will be from each according to his abilities, to each according to his needs: this does not require law. The third aspect consists of the fact that the functioning of a legal superstructure demands a coercive apparatus. When we say that social relationships have assumed a legal expression, this means inter alia that they have been given a coercive nature by the state power of the ruling class. Withering away of the law can only occur simultaneously with the withering away of the state.

Relationships which have received legal expression are qualitatively different from those relationships which have not received this expression. The form of this expression may be different, as was indicated by Engels [5] ; it may sometimes be good and sometimes be bad. It may support the progressive development of these relationships or, on the contrary, retard them. Everything depends on whether power is in the hands of a revolutionary or a reactionary class. Here the real significance of the legal superstructure appears. However, the degree of this reality is a question of fact; it can be determined only by concrete study and not by any a priori calculations. Bourgeois jurists characteristically concentrate their attention on form, and utterly ignore content. They turn their backs on life and actual history. As Engels showed, “they consider public and private law as independent areas, which have their own independent development and which must and may be subjected to independent systematic elaboration by the consistent elimination of all internal contradictions.” [6]

Bourgeois jurists usually define law as the totality of norms to which a state has given coercive power. This view of law typifies so-called legal positivism. The most consistent representatives of this trend are the English jurists: of the earliest Blackstone (eighteenth century), and thereafter Austin. In other European countries legal positivism also won itself a dominant position in the nineteenth century, because the bourgeoisie either gained state power or everywhere achieved sufficient influence in the state so as not to fear the identification of law with statute. At the same time nothing was better for legal professionals, for judges, [and] for defence counsel since this definition fully satisfied their practical needs. If law in its entirety was the complex of orders proceeding from the state, and consolidated by sanction in the case of disobedience, then the task of jurisprudence was defined with maximum clarity. The work of the jurist, according to the positivists, did not consist in justifying law from some external point of view – philosophers were occupied with this; the task of the jurists did not include explaining from where a norm emerged, and what determined its content – this was the task of political scientists and sociologists. The role of the jurist remained the logical interpretation of particular legal provisions, the establishment of an internal logical connection between them, combining them into larger systematic units in legal institutions, and finally in this way the creation of a system of law.

The definition of law as the totality of norms is the starting point for supporting the so-called dogmatic method. This consists of using formal logical conclusions in order to move from particular norms to more general concepts and back, proceeding from general positions to propose the solution of concrete legal cases or disputes. It is obvious that the practical part of this role developing especially luxuriantly in the litigious circumstances of bourgeois society – has nothing in common with a scientific theory of law. Applications of so-called legal logic are not only theoretically fruitless, they are not only incapable of revealing the essence of law and thus of showing its connection with other phenomena-with economics, with politics, with class struggle – but they are also harmful and impermissible in the practice of our Soviet courts and other state institutions. We need decisions of cases, not formally, but in their essence; the state of the working people, as distinct from the bourgeois state, does not hide either its class character or its goal – the construction of socialism. Therefore, the application of norms of Soviet law must not be based on certain formal logical considerations, but upon the consideration of all the concrete features of the given case, of the class essence of those relationships to which it becomes necessary to apply a general norm, and of the general direction on of the policy of Soviet power at the given moment. In the opposite case a result would be obtained which Lenin defined as: “Correct in form, a mockery in substance.”

The denial of formal legal logic cultivated by the bourgeoisie does not mean a denial of revolutionary legality, does not mean that judicial cases and questions of administration must be decided chaotically in the Soviet state, systematically on the basis of the random whims of individuals, or on the basis of local influences. The struggle for revolutionary legality is a struggle on two fronts: against legal formalism and the transfer to Soviet soil of bourgeois chicanery, and against those who do not understand the organizational significance of Soviet decrees as one of the methods of the uniform conduct of the policy of the dictatorship of the proletariat.

Thus, the law is the means of formulating and consolidating the production relationships of class society and the social relationships which are connected with them. In the legal superstructure, these relationships appear as property relations and as relations of domination and subordination. They appear, in particular, as relations of an ideological nature, i.e. as relations which are formed in connection with certain views and are supported by the conscious will of the people.

We shall not touch upon the question of the degree to which the legal ideology of the exploiting classes is capable of correctly reflecting reality, and in what measure it inevitably distorts it (representing the interest of the exploiting class as the social interest in order, legality, freedom etc.). Here, we merely emphasize the fact that without the work of legislators, judges, police and prison guards (in a word, of the whole apparatus of the class state), law would become a fiction. “Law is nothing without an apparatus capable of enforcing observation of the norms of law” (Lenin).

The conscious will – towards the formulation and consolidation of production and other relationships – is the will of the ruling class which finds its expression in custom, in law, in the activity of the court and in administration. The legal superstructure exists and functions because behind it stands an organization of the ruling class, namely the apparatus of coercion and power in the form of the army, the police, court bailiffs, prison guards and hangmen. This does not mean that the ruling class has to use physical force in every case. Much is achieved by simple threat, by the knowledge of helplessness and of the futility of struggle, by economic pressure, and finally by the fact that the working classes are in the ideological captivity of the exploiters. It is sufficient to mention the narcotic of the religious ideology of humility and meekness, or the genuflection before the idol of bourgeois legality preached by the reformist.

But the ultimate argument for, and the basis of, the legal order is always the means of physical force. Only by depending on them could the slaveowner of antiquity or the modern capitalist enjoy his right.

The attempts by certain bourgeois jurists to separate law from the state, or to contrast “law” and “force”, are dictated by the attempt to hide and conceal the class essence of law.

Often these proofs that law is independent of the state bear a truly laughable character. Thus, for instance, Stammler claims that he has proved this thesis relying on the fact that on a dirigible which flies over the North Pole, i.e. outside the sphere of action of any state power, the emergence of legal relationships is possible.

By such empty dogmatic chicanery the scientific question of the relationship of state and law is decided. Can one be surprised at Lenin’s sharp reaction to Stammler when he says that: “From stupid arguments, Stammler draws equally stupid conclusions.”

The dependence of law on the state, however, does not signify that the state creates the legal superstructure by its arbitrary will. For the state itself, as Engels says, is only a more or less complex reflection of the economic needs of the dominant class in production.

The proletariat, having overthrown the bourgeoisie and consolidated its dictatorship, had to create Soviet law in conformity with the economy, in particular the existence of many millions of small and very small peasant farms. After the victory of the proletarian revolution the realization of socialism is not an instantaneous act but a long process of construction under the conditions of acute class struggle.

From the policy of limiting its exploitative tendencies and the elimination of its front ranks, we moved to the policy of liquidating the kulaks as a class by widespread collectivization. A successful fulfilment of the first Five Year Plan; the creation of our own base for the technical reconstruction of the whole national economy; the transfer of the basic mass of the peasantry to collectivization; these events enabled the basic task of the second Five Year Plan to be:

the final liquidation of capitalist elements and classes in general, the full elimination of the causes of class differences and exploitation, the overcoming of the survivals of capitalism in the economy and the consciousness of the people, the transformation of the whole working population of the country into conscious and active builders of a classless society. [7]

At each of these stages Soviet law regulated and formulated production relationships differently.

Soviet law in each of the stages was naturally different from the law of capitalist states. For law under the proletarian dictatorship has always had the goal of protecting the interest of “the working majority, the suppression of class elements hostile to the proletariat, and the defence of socialist construction. Those individual Soviet jurists who considered law as the totality of norms (i.e. externally and formally) are not in a position to understand this. Finding identically formulated norms in the system of bourgeois and Soviet law, these jurists began to speak of the similarity between bourgeois and Soviet law, to search out “general” institutions, and to trace the development of certain “general” bases for bourgeois and Soviet law. This tendency was very strong in the first years of NEP. The identification of Soviet with bourgeois law derived from an understanding of NEP as a return to capitalism, which found expression in the Marxist ranks.

If NEP, as the Zinoviev opposition asserted at the XIVth Party Congress, is “capitalism which holds the proletarian state on a chain”, then Soviet law must be presented as bourgeois law, in which certain limitations are introduced, to the extent in the period of imperialism that the capitalist state also regulates and limits the freedom of disposition of property, contractual freedom etc.

Such a distortion in the description of NEP led directly to an alliance with bourgeois reformists in the understanding of Soviet law.

In fact, NEP “is a special policy of the proletarian state intended to permit capitalism while the commanding heights are held by the proletarian state, intended for the struggle between the capitalist and socialist elements, intended for the growth of the role of the socialist elements at the expense of the capitalist elements, intended for the victory of the socialist elements over the capitalist elements, intended for the elimination of classes and for the construction of the foundation of a socialist economy.” [8]

Soviet law as a special form of policy followed by the proletariat and the proletarian state, was intended precisely for the victory of socialism. As such, it is radically different from bourgeois law despite the formal resemblance of individual statutes.

Juridicial formalism, which conceives of nothing other than the norm and reduces law to the purely logical operation of these norms, appears as a variety of reformism, as a Soviet “juridical socialism”. By confining themselves only to the norm and the purely juridical (i.e. formal ideas and concepts), they ignored the socio-economic and political essence of the matter. As a result, these jurists arrive at the conclusion that the transformation of property from an arbitrary and unrestricted right into a “social function” (i.e. a tendency which is “peculiar to the law of the advanced”, that is, capitalist, countries), finds its “fullest” expression in Soviet legislation. Making this contention, the Jurists “forgot” such a trifle as the October Revolution and the dictatorship of the proletariat.

It is not only important to “read” the norm, but also to know what class, what state, and what state apparatus is applying this norm.

6. Law and production relationships

Production relationships form the basis of society. It is necessary to begin with these relationships in order to comprehend the complex picture presented by the history of mankind.

To search for the basic characteristic of society and social relations in an area other than production relationships means to deprive oneself of the possibility of a scientific understanding of the laws of development of social formations. However, it by no means follows from this that, according to Marx, only relations of production and exchange are social relations. Such a concept is a caricature of Marxism. The equation of social relations with production relations in this case is understood purely mechanically. However, a number of times Lenin noted that Marx’s great service was that he did not limit himself to the description of the economic “skeleton” of capitalist society, but that:

in explaining the construction and development of a definite social formation “exclusively” by production relations, he nonetheless thoroughly and constantly studied the superstructure corresponding to these production relations, which clothed the skeleton with flesh and blood. The reason that Das Kapital had such enormous success was that this book (“by a German economist”) showed the capitalist social formation as a living thing-with its everyday aspects, with the actual social phenomena essential to the production relations between antagonistic classes, with the bourgeois political superstructure protecting the domination of the capitalist class, with the bourgeois ideas of freedom, equality etc., with bourgeois family relations. [9]

Stuchka looks differently at the matter. In his opinion, Marx considered only relations of production and exchange to be social relations. But this would mean affirming that Marx limited himself to the “skeleton” alone, as if having indicated the basic and eventually determinant in social life and social relations he then passed by that which is derivative and requires explanation. However, more than once Marx directly points out the existence of social relationships which are not production relations but which merely derive from them and correspond to them. Characterizing revolutionary proletarian socialism in France in 1848, Marx wrote:

This socialism is the proclamation of the permanence of the revolution , a proclamation of the class dictatorship of the proletariat as a necessary transition toward the elimination of class differences altogether, toward the elimination of all production relations upon which these differences are based, toward the elimination of all social relationships corresponding to these production relations, toward a revolution in the entire world of ideas arising from these relationships. [10]

Nevertheless, Comrade Stuchka firmly defends his understanding of the term “social relationships”:

We proceed from social relationships; I emphasize the word “social”, for here my critics are desperately confused. I thus selected the word “social” and a whole chapter in my first book was dedicated to it only in the sense of relations of production and exchange (as Marx and every Marxist understands this). [11]

Proceeding from the equation of production and social relationships, Stuchka defined law as a “system (or order) of social relations corresponding to the interests of the ruling class and protected by its organized force”. In this definition, as he himself indicated, there was room only for the law of property and the law of obligations.

As earlier, so even now [he wrote] I consider basic law , law in general, to be civil law , understanding thereby the form of organization of social relationships in the narrow and specific sense of the word (i.e. relations of production and exchange). I consider that all the remaining areas of law are either of a subordinate or derivative character, and that only bourgeois law (subjecting to its influence all the remaining areas of law) created a legal state, or state law and criminal law, as an equivalent norm for crime and punishment, not even mentioning administrative, financial etc., and finally international law or even the law of war. [12]

The positions outlined in this excerpt contain a series of mistakes. There is no doubt that the formulation and conformation of social relationships to the means of production is basic to law. Proceeding from the economic basis, from different forms of exploitation, we differentiate slaveowning, feudal and capitalist systems of law. But, in the first place, it is incorrect to subsume the property relations of slaveowning or feudal society under the concept of civil, i.e. bourgeois, law as “law in general”. In the second place, state law may not be equated with the so-called Rechtsstaat of the bourgeoisie. If one takes this point of view then one must either deny the existence of a distinctive feudal state law, or show that despite the existence of a Soviet state we do have Soviet state law. At the same time, in other places in his textbook, Stuchka proceeds from the existence of different class systems of law: feudal, bourgeois, Soviet. Here he argues for a “general law” which is equated with the civil law of bourgeois society. At the same time state law is equated with the theory of bourgeois jurists of the so-called Rechtsstaat , and criminal law (i.e. formalized class repression) with the ideology of equivalent retribution.

The basic question – do relationships exist that enter into the content of law, which are not, however, relations of production and exchange? – is avoided by Stuchka; he cites the subsidiary, derivative etc. character of state, criminal etc. law. However, it is clear that the structure of family relationships, the formalization of class domination in the state organization, the formalization of class repression, all this is embraced by the different branches of law (family, state and criminal).

The content of this legal intermediary is the social and political relationships which, in the final analysis, are reducible to the same production relationships, but by no means correspond to them.

Stuchka’s subsequent definition of law suffers from the shortcoming that he limits the area of law merely to production relations. This definition also introduces confusion because it confuses law with economics. Proceeding from the indisputable position that not all which is stated in a norm (in a statute) is realized in fact, Stuchka has made the incorrect conclusion that law is indeed the very relation of production and exchange. Stuchka has therefore declared Marx’s teaching – that law is an ideological superstructure to be a tribute to the “volitional theory” of the old jurists.

Whoever has mastered the form of theorizing of Marx and Engels that capital, money etc., are social relationships, will at once understand my views on the system of social relationships. This will be hardest of all for a jurist for whom law is a purely technical and artificial superstructure, strangely enough, holding sway over its base. Even Karl Marx gave a small tribute to this concept when he spoke of law as an ideological superstructure. But Marx was raised on Roman law and in general on the juridic concepts of the 1830s, considering it an expression “of the general will” ( Volkswillen ), and he was [therefore] accustomed to its terminology. [13]

In conducting the struggle with the narrow, formal legal concept of law as a totality of norms, we cannot deny the real existence of the legal superstructure, i.e. of relationships formulated and consolidated by the conscious will of the ruling class. Only to the extent that this process of formulation and consolidation proceeds may one speak of law. To study law only as totality of norms means to follow the path of formalism and dogmatism. But to study law only as relationships of production and exchange means to confuse law with economics, to retard the understanding of the reciprocal action of the legal superstructure and its active role. At the same time as production relations are imposed on people regardless of their will, legal relationships are impossible without the participation of the conscious will of the ruling class. The teaching of Marx, Engels and Lenin on law as an ideological superstructure needs no correction. Law cannot be understood unless we consider it as the basic form of the policy of the ruling class. In the later editions of The Revolutionary Role of State and Law , Stuchka supplemented his definition of law, developing the theory of the so-called three forms of law. The first, or in Stuchka’s words, the concrete form of law, is a legal relationship which corresponds to a production relationship and, with it, constitutes the base [or] reality. On the contrary, the two “abstract” forms – statute and legal ideology as Stuchka expresses it – are the essence of “the manifest superstructure”. [14]

This approach is also incorrect and non-dialectical. A legal relationship is a form of production relations because the active influence of the class organization of the ruling class transforms the factual relationship into a legal one, gives it a new quality, and thus includes it in the construction of the legal superstructure. This result is not achieved automatically by laissez faire , in the same way that prices are established under free competition. Even in the case of so-called customary law, the ruling class – through its special agencies, through the courts – ensures that the relations correspond to obligatory rules. This is all the more true with respect to the legislative creation of norms.

In particular, the revolutionary role of the legal superstructure is enormous in the transitional period when its active and conscious influence upon production and other social relationships assumes exceptional significance. Soviet law, like any law, will cease to exist if it is not applied. But the application of law is an active and conscious process by which the state apparatus plays the decisive role as a powerful weapon of class struggle. Would it be possible, for instance, to speak of Soviet law which did not somehow recognize the Soviet state, the Soviet agencies of power, Soviet courts etc.? It is clear that while an individual statute may be removed from the real legal order and remain a pious wish, concrete legal relationships may never be removed from the consciousness and will of the ruling class, may never be transferred from the superstructure to the base without parting from the heart of historical materialism.

From all that has been said above it is clear that the definition of law as a formal intermediary of the economy must be recognized as insufficient and incorrect. The different branches of law are connected differently with the economy; this must never be forgotten, and this is not expressed in the above-mentioned definition. On the contrary it can lead to the notion that the area of law is limited to property relationships alone. Then all the other types of law must be declared non-existent. Stuchka would, in fact, have had to reach this conclusion. But he speaks of criminal and state law, not entirely consistently with his other position, i.e. by referring to them he recognizes their existence.

There is no doubt that economics is at the base of political, familial and all other social relations. [15] But the election law of any capitalist country facilitates the economy differently from civil law or the Criminal Code. To try to force all the varied branches of law into one formula is to give preference to empty abstractions.

Law as a formal facilitation of social and (primarily) production relationships must be studied concretely. This study may not be replaced with ready citations from Hegel with respect to the “transformation of form into substance and substance into form”. The dialectical method, which teaches that every truth is concrete, becomes in this instance its own opposite-dead scholasticism, barren arguments and disputes on the theme that “form is not without content and content not without form”. However, the matter really consists of showing the role and character of law as form in specific and concrete branches of law and concrete historial conditions with a relation to concrete content. Only in this manner can the real relation of form and content be established and can one be convinced that it is far from identical in different instances. Often legal form hides economic content directly contrary to it (thus in the period when we conducted the policy of restricting the kulak, the leasing of a horse or tools by a poor peasant to a rich one often hid the sale of the first’s labour power to the second). A transaction of purchase and sale can hide the most diverse economic content. The same could be said about any other relationships within the so-called law of obligations. Here we meet with a phenomenon whose form is relatively indifferent to its content, but it is improper to conclude from this that in civil law we have a “faceless instrumentality” which must be used independently of the economic class content of the relationships which it implements. On the contrary, the significance of form is recognized only through content, through economics, through politics and through relations between classes.

Therefore, it is a flagrant error to equate law as an historical phenomenon – including various class systems – with the totality of those features of bourgeois law that derive from the exchange of commodities of equal value. [16] Such a concept of law minimizes the class coercion essential to bourgeois law, essential to feudal law and to all law. Law in bourgeois society serves not only the facilitation of exchange, but simultaneously and mainly supports and consolidates the unequal distribution of property and the monopoly of the capitalist in production. Bourgeois property is not exhausted by the relationships between commodity owners. These [owners – eds. ] are tied by exchange and the contractual relationship is the form of this exchange. Bourgeois property includes in a masked form the same relationship of domination and subordination which, in feudal property, appears chiefly as personal subordination.

This methodological mistake was related to the relegation of the class repressive role of law, and to an incorrect presentation of the relation between state and law (the state as the guarantor of exchange), and to mistakes in questions of morality (the denial of proletarian morality) and in questions of criminal law.

The attempts to distinguish between formal characteristics and abstract legal concepts expressing the relationship between commodity owners, and to proclaim this “form of law” as the subject of the Marxist theory of law, should be recognized as grossly mistaken. This paves the way to the separation of form and content, and diverts theory from the task of socialist construction to scholasticism.

The immediate relation, in practice, between the proletariat (as the ruling class) and law (as a weapon with whose help the tasks of class struggle at any given stage are decided) is in this case replaced by the abstract theoretical denial of the “narrow horizons of bourgeois law” in the name of developed communism.

From this perspective Soviet law is seen exclusively as a legacy of class society imposed on the proletariat and which haunts it until the second phase of communism. The abstract theoretical exposure of “bourgeois” law hides the task of the concrete analysis of Soviet law at different stages of the revolution. Accordingly, it gives insufficient concrete indication of the practical struggle against bourgeois influences, and against opportunist distortions of the Party’s general line on Soviet law.

The theoretical mistake of exaggerating the importance of market relations can be the basis for right opportunist conclusions about always preserving the bourgeois forms of law corresponding to private exchange. Conversely, to ignore exchange in considering the problems of Soviet law leads to “leftist” positions about the withering away of law which is now in the process of socializing the means of production, and about the withering away of economic accountability and the principle of payment according to labour, i.e. to the defence of the elimination of individual responsibility and wage egalitarianism.

Top of the page

1. K. Marx, Letter to Weydemeyer (March 5, 1852), MESW , vol.1, p.528.

2. V. I. Lenin, The Economic Content of Narodnism (1895), LCW , vol.1, p.419.

3. See Kellreiter’s article The State ;, in D. Elster et al. (eds), Handwörterbuch der Rechtswissenschaft (1923), Fischer, Jena, p.599.

4. V.I. Lenin, A Contribution to the History of the Question of Dictatorship (1920), LCW , vol.31, p.353.

5. F. Engels, Ludwig Feuerbach and the End of Classical German Philosophy (1888), MESW , vol.3, p.371.

6. ibid. , p.371.

7. From a resolution of the XVIIth Party Conference (1932).

8. J. Stalin, The Fourteenth Congress of the CPSU (1925), Stalin: Works, Foreign Languages Publishing House, Moscow (1954), vol.7, p.374.

9. V.I. Lenin, What the “Friends of the People” Are (1894), LCW , vol.1, pp.141-42.

10. K. Marx, The Class Struggles in France (1850), MESW , vol.1, p.282.

11. P.I. Stuchka, A Course on Soviet Civil Law (1927), Communist Academy, vol.1, p.13.

12. ibid. , pp.78-79.

13. P.I. Stuchka, The Revolutionary Role of Law and State (1921), Moscow, p.15.

14. ibid. (3rd edition); and P.I. Stuchka’s article Law in Encyclopaedia of State and Law, (1925-1927), vol.3, pp.415-430.

15. “The state and law are determined by economic relations. Of course, the same must be said of civil law whose role in essence consists of the legislative clarification of the existing economic relations between individuals which are normal in the given circumstances” F. Engels, Ludwig Feuerbach and the End of Classical German Philosophy (1888), op. cit. p.370.

16. This erroneous conception was developed in E.B. Pashukanis, The General Theory of Law and Marxism (1927), 3rd edition. See also E.B. Pashukanis, The Situation on the Legal Theory Front , Soviet State and the Revolution of Law (1930), no.11-12; and For a Marxist-Leninist Theory of State and Law (1931) Moscow, where a critique of this mistaken conception is given.

Last updated on 13.5.2004

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Ukraine’s Parliament Passes a Politically Fraught Mobilization Bill

The legislature approved a law to replenish Ukrainian forces. Lawmakers said the bill included incentives for volunteers and new penalties for those trying to evade conscription.

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Soldiers standing in a circle around an instructor.

By Marc Santora

Reporting from Kyiv, Ukraine

After months of political wrangling, Ukraine’s Parliament passed a new law on Thursday that aims to replenish the nation’s exhausted and depleted fighting forces, which are struggling to hold back relentless Russian assaults that are expected to intensify into the summer.

The mobilization law is a carefully crafted attempt to expand the size of Ukraine’s military while avoiding a public backlash. It offers a mix of financial incentives for those taking up arms, including a special bonus for soldiers at the front and death benefits for the families of those who fall in battle. It also imposes new penalties on Ukrainian men trying to evade service, like suspending the driver’s licenses of those who fail to register.

But perhaps as important as what was included in the legislation is what was cut — namely a timeline for when conscripts will be demobilized, something that both soldiers and their families had been demanding after more than two years of a brutal war.

The original version of the bill submitted in February included provisions that would have capped mandatory service at 36 months, but they were removed at the request of the military.

The urgent need for fresh troops has been evident since last fall, as Russia stepped up attacks and started grinding a slow and bloody path forward in eastern Ukraine, including by seizing the city of Avdiivka earlier this year.

“Ukraine needs this bill and it needed it much earlier,” Volodymyr Yermolenko, the editor in chief of Ukraine World, an independent news outlet, said in an interview. “It is good we have it now because it will create a more stable and firm legal framework for mobilization.”

It will take a month for the new measures to come into force, and Mr. Yermolenko said it would take more time yet to assess their impact. But, he added, it was “a step in the right direction.”

Petro Burkovsky, the head of the Democratic Initiatives Foundation, a Ukrainian think tank, said he thought that the bill had come late and did not address deeper issues facing Ukraine, like “a detachment between the political leadership and society.”

But, ultimately, he said, President Volodymr Zelensky would be judged by the results, and there was only one result that mattered: whether the war against Russia was won or lost.

Mr. Zelensky had been exceedingly cautious in dealing with the politically fraught topic of mobilization, which has the potential to undermine the social cohesion that has played a critical role in Ukraine’s ability to wage war against a far larger and better-armed enemy.

Mr. Zelensky, who was visiting Lithuania on Thursday, had urged lawmakers to act this week and is widely expected to sign the new legislation soon.

However, the last time Ukraine’s Parliament passed controversial legislation related to mobilization — lowering the draft eligibility age to 25 from 27 last May — Mr. Zelensky waited nearly a year before signing it into law this month.

The bill that passed on Thursday, which addressed mobilization issues more broadly, was overwhelmingly approved. It was supported by 283 lawmakers , and 49 lawmakers from various opposition parties abstained, according to the official roll call.

The bill’s passage comes at a precarious moment for Ukraine, which is struggling to hold the front lines because of ammunition shortages and to protect millions of civilians in the rear because of dwindling air defenses.

Lawmakers passed the bill only hours after the country was rocked by yet another large-scale bombardment of more than 80 missiles and drones, many aimed at Ukraine’s already battered energy infrastructure, officials said. It was the third large-scale assault aimed at the grid since March 22, part of a renewed Russian campaign to collapse the Ukrainian power network.

One energy company, DTEK, said that attacks over the last three weeks had been the most severe of the entire war, destroying around 80 percent of its generating capacity.

In an attack Thursday, the main thermal power plant providing energy for the Kyiv region was completely destroyed, the plant operator, Centrenergo, said. The city of Kharkiv, in eastern Ukraine, was hit by 10 missiles and more than 200,000 people were left without power, officials said.

“If Russia is allowed to continue, if Russian missiles and Shahed drones strike not only Ukraine but also the determination of our partners, it will be a global endorsement of terror,” Mr. Zelensky said in a statement after the attacks.

There were no reported deaths from the overnight strikes, but Ukrainian officials say that hundreds of civilians have been killed and injured in recent weeks as Russia has stepped up bombardments.

One explosion in Mykolaiv, in southern Ukraine, on Thursday killed four civilians and injured five more people, according to local authorities.

Ukraine is dependent on its allies for the air defense systems that have offered a shield for millions. Mr. Zelensky has also struggled to bolster the armed forces without undermining public support or endangering economic stability.

Much of the new law, which was outlined in part by legislators on social media and interviews with Ukrainian news outlets, appears to be relatively modest and has broad support from across the political spectrum.

For instance, the law creates an additional payment of around $1,800 to soldiers performing combat tasks at the front, which comes on top of their base salary and combat pay.

But the scrapping of the proposed limits on how long conscripted soldiers should serve before being demobilized was quickly criticized by soldiers on social media and by Mr. Zelensky’s political opponents.

Oleksiy Goncharenko, a member of Parliament in the opposition European Solidarity party, said that he refused to vote for the bill because of that omission.

“It was important to include demobilization,” he said in a statement. “And they just threw it out.”

Under martial law, which was imposed soon after Russia’s full-scale invasion of Ukraine in February 2022, conscripts are compelled to serve until the end of hostilities, with notably few exemptions.

Gen. Oleksandr Syrskyi, Ukraine’s top military commander, had pressed lawmakers to separate the issue of mobilization from demobilization, a development first reported by the Ukrainian daily Ukrainska Pravda this week.

The Ministry of Defense said in a statement that demobilization was excluded from the government bill at General Syrskyi’s request because he “understands the operational situation” and “the threats and risks facing the state.”

Instead, the government will develop a separate bill on rotations and demobilization , but this could take up to eight months, the ministry said.

Some legislators said they had abstained because they felt that Thursday’s bill did not go far enough.

Inna Sovsun, an opposition lawmaker, said she could not vote for the bill because the punishments for evading military service and the bonuses for those who enlisted were both insufficient. She said the failure to address demobilization created “the impression of a one-way ticket and destroys any motivation for new people to join the army.”

The law includes a provision that would allow soldiers to leave the military after captivity; a requirement for men recognized as only “limitedly fit” to be re-examined within 12 months; and mortgage assistance for military personnel who completed a certain period of service.

Another opposition lawmaker, Iryna Friz, said the law allowed recruits who signed contracts to choose their own units and granted additional leave and rewards for soldiers who destroyed or captured enemy weapons or equipment. The families of soldiers who are killed will be sent a one-time payment of 15 million hryvnias, or about $380,000, she said.

While Ukraine’s war effort has been hampered by personnel shortages, Russia has been able to sustain steep losses on the battlefield by recruiting an estimated 30,000 new soldiers to fight in Ukraine every month, according to Ukrainian intelligence officials and Western military analysts .

The British military intelligence agency said in a statement on Wednesday that the Kremlin was seeking to recruit 400,000 people in 2024 to sustain its forces in Ukraine.

Russia’s annual springtime conscription drive is expected to add another 150,000 soldiers between the ages of 18 to 30 to its ranks, although they are less likely to serve in combat roles, the British agency said.

Oleksandr Chubko contributed reporting.

Marc Santora has been reporting from Ukraine since the beginning of the war with Russia. He was previously based in London as an international news editor focused on breaking news events and earlier the bureau chief for East and Central Europe, based in Warsaw. He has also reported extensively from Iraq and Africa. More about Marc Santora

Our Coverage of the War in Ukraine

News and Analysis

The top American military commander in Europe warned that Ukraine could lose the war with Russia if the United States did not send more ammunition to Ukrainian forces, and fast.

Ukrainian lawmakers passed a mobilization law aimed at replenishing the nation’s exhausted and depleted fighting forces .

China’s top leader, Xi Jinping, and Russia’s foreign minister, Sergey Lavrov, met in Beijing . The visit came days after the United States threatened new sanctions against Chinese companies if they aided Russia’s war in Ukraine.

Hollowing Out a Generation: Ukraine desperately needs new recruits, but it is running up against a critical demographic constraint long in the making: It has very few young men .

Conditional Support: Ukraine wants a formal invitation to join NATO, but the alliance has no appetite for taking on a new member that would draw it into the biggest land war in Europe since 1945.

‘Shell Hunger’: A desperate shortage of munitions in Ukraine is warping tactics and the types of weapons employed, and what few munitions remain are often mismatched with battlefield needs.

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Martial Law in the United States: Its Meaning, Its History, and Why the President Can’t Declare It

Introduction

Part I: What is Martial Law?

Part II: Can the President Unilaterally Declare Martial Law?

Part III: What has Congress Said About Martial Law?

Part IV: Martial Law is Constrained by the Constitution and Subject to Judicial Review

Part V: What About the States?

Acknowledgments

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Ferdinand Marcos as a Leader: Impact of Martial Law on Philippines

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Remembering Martial Law: An Eco-System of Truth Initiatives and the Emergence of Narrative Documentation in the Philippines

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Evgeny Pashukanis

Introductory Note

CHAPTER I Socio-economic Formations, State, and Law

3. The class type of state and the form of government

4. The class nature of law

5. Law as an historical phenomenon: definition of law

6. Law and production relationships

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