Debates on the Law on Thefts of Wood – 27 October 1842

Marx/Engels

1
. Berlin/GDR. 19
76
. pp.
109-147
.

1.5. Correction

Created on 30.08.1999

Karl Marx

Debates on the Law on Thefts of Wood

By a Rhinelander

[»Rheinische Zeitung« No. 298 of 25 October 1842]

[»Rheinische Zeitung« No. 300 of 27 October 1842]

[»Rheinische Zeitung« No. 303 of 30 October 1842]

[»Rheinische Zeitung« No. 305 of 1 November 1842]

[»Rheinische Zeitung« No. 307 of 3 November 1842]

[»Rheinische Zeitung« No. 300 of 27 October 1842]

The customary rights of the privileged bristle, by virtue of their
content
, against the form of the general law. They cannot be shaped into laws, because they are formations of lawlessness. By the fact that these customary rights, through their content, bristle against the form of the law, against universality and necessity, they thereby demonstrate precisely that they are
customary wrongs
and are not to be asserted in opposition to the law, but rather are to be abrogated as an antithesis to it, and even, where occasion offers, are to be punished; for no one ceases to act unlawfully because this mode of action is his custom, just as the thieving son of a thief is not excused on account of his family idiosyncrasies. If a man acts intentionally against the right, punish his intention; if from custom, punish his custom as a bad custom. Reasonable customary right is, in the age of general laws, nothing other than the
custom of legal right,
for right has not ceased to be custom because it has constituted itself as law, but it has ceased to be
merely
custom. To the law-abiding person it becomes his own custom, against the law-breaking person it is enforced, even though it is not his custom. Right no longer depends on the accident of whether the custom is reasonable, but rather custom becomes reasonable because the right is legal, because the custom has become the custom of the state.

Customary right as a
separate domain
alongside legal right is therefore only reasonable where right exists
apart from
and outside the
law,
where custom is the
anticipation
of a legal right. There can, therefore, be no talk at all of the customary rights of the privileged estates. In the law they have found not only the recognition of their reasonable right, but often even the recognition of their unreasonable presumptions. They have no right to anticipate against the law,

for the law has anticipated all possible consequences of their right. Hence they are merely demanded as domains for the menus plaisirs [petty pleasures (involving incidental expenses)], so that the same content which in the law is treated within its reasonable limits may find in custom a playground for whims and presumptions contrary to its reasonable limits.

If, however, these privileged customary rights are customs contrary to the concept of reasonable right, the customary rights of poverty are rights contrary to the custom of positive right. Their content does not bristle against the legal form; it bristles rather against its own formlessness. The form of the law does not stand opposed to it; rather, it has not yet attained it. Only a little reflection is needed to see how
one-sidedly
enlightened legislations have treated, and had to treat, the
customary rights of poverty,
whose most abundant source may be regarded as the various
Germanic
rights.

The most liberal legislations have, with regard to
private law,
restricted themselves to formulating the rights which they found and raising them to the universal. Where they found no rights, they granted none. They abolished particular customs, but in doing so they forgot that, if the wrong of the estates appeared in the form of arbitrary presumptions, the right of those without estate appeared in the form of accidental concessions. Their procedure was correct towards those who had customs
outside
the right, but it was incorrect towards those who had customs
without
the right. Just as they transformed arbitrary presumptions, in so far as a reasonable legal content was to be found in them, into legal claims, so they ought also to have transformed accidental concessions into necessary ones. We can make this clear by one example, that of the monasteries. The monasteries were abolished, their property was secularised, and it was right to do so. But the accidental support which the poor found in the monasteries was by no means transformed into another positive source of property. By turning the monastery property into private property and compensating the monasteries, one did not compensate the poor who lived from the monasteries. On the contrary, a new limit was drawn for them and they were cut off from an old right. This occurred with all transformations of prerogatives into rights. A positive side of these abuses, which in so far was also an abuse as it made the right of one side an accident, was removed not by transforming the accident into a necessity, but by abstracting from it.

The one-sidedness of these legislations was a necessary one, for all the customary rights of the poor were based on the fact that certain property bore a fluctuating character, which did not stamp it decisively as private property, but yet also did not stamp it decisively as common property, a mixture of private right and public right, such as we encounter in all institutions of the Middle Ages. The organ with which the legislations grasped such ambiguous formations was the understanding, and the understanding is not only one-sided, but its essential business is to render the world one-sided, a great and admirable work, for only one-sidedness forms and tears the particular out of the inorganic slime of the whole. The character of things is a product of the understanding. Every thing must isolate itself and be isolated in order to be something. By confining every content of the world within a fixed determinacy and, as it were, petrifying the fluid essence, the understanding brings forth the manifoldness of the world, for the world would not be many-sided without the many one-sidednesses.

The understanding, therefore, abolished the hybrid, fluctuating formations of property by applying the available categories of abstract private law, the schema of which was found in Roman law. The legislative understanding believed itself all the more justified in abolishing the obligations of this fluctuating property towards the poorer class, in that it also abolished its state privileges; however, it forgot that, even considered on a purely private-law basis, a double private right presented itself here, a private right of the possessor and a private right of the non-possessor, quite apart from the fact that no legislation abolished the public-law privileges of property, but simply divested them of their adventurous character and endowed them with a civil character. Yet if every medieval form of right, and hence also property, was on all sides of a hybrid, dualistic, conflicted nature, and if the understanding, with reason, asserted its principle of unity against this contradiction of determination, it overlooked the fact that there are objects of property which by their nature can never attain the character of pre-determined private property, which, by their elementary essence and their accidental existence, fall to the right of occupation, and hence fall to the right of occupation of the class which, precisely through the right of occupation, is excluded from all other property, which occupies the same position in civil society as those objects do in nature.

One will find that the customs which are customs of the whole poor class know, with sure instinct, how to grasp property on its
indeterminate
side; one will find not only that this class

feels the drive to satisfy a natural need, but just as much that it feels the need to satisfy a rightful drive. Dead wood serves us as an example. It is as little organically connected with the living tree as the sloughed skin with the snake. Nature itself, in the dry, broken twigs and branches detached from organic life, in contrast to the firmly rooted, sappy trees and trunks, organically assimilating air, light, water and earth to their own form and individual life, presents, as it were, the antithesis of poverty and wealth. It is a physical representation of poverty and wealth. Human poverty feels this kinship and derives its right of property from this feeling of kinship; and when, therefore, it vindicates the physical-organic wealth to the premeditating owner, it vindicates physical poverty to need and its accident. In this play of the elementary forces it senses a friendly power, more humane than the human. In place of the accidental arbitrariness of the privileged, the accident of the elements has stepped in, tearing from private property what it no longer lets go of itself. As little as alms thrown on to the street belong to the rich, so little do these
alms of nature.
But even in its
activity
poverty already finds its right. In
gathering,
the elementary class of human society marshals itself against the products of the elementary force of nature. The situation is similar with products which, growing wild, are a wholly accidental appendage of possession and, already on account of their insignificance, form no object for the activity of the proper owner; similar with gleaning, after-harvesting and the like customary rights.

Thus in these customs of the poor class there lives an instinctive sense of right; their root is positive and legitimate, and the form of
customary right
is here all the more natural in that the
existence of the poor class itself
has hitherto been a
mere custom
of civil society, which has not yet found an appropriate place within the circle of the conscious articulation of the state.

The debate before us immediately provides an example of how these customary rights are treated, an example in which the method and the spirit of the whole procedure are exhausted.

A deputy of the towns opposes the provision whereby the gathering of wild berries and bilberries is also treated as theft. He speaks above all on behalf of the children of poor people, who gather these fruits in order to earn a trifle for their parents,

which has been tolerated by the owners since
time immemorial
and through which a
customary right
arose for the little ones. This fact is refuted by the note of another deputy: “in his district these fruits are already articles of commerce and are sent by the barrel to Holland.”

It has really already been brought to the point, in
one place,
of turning a customary right of the poor into a
monopoly
of the rich. The exhaustive proof is furnished that one can monopolise a common good; hence it follows of itself that one must monopolise it. The nature of the object demands the monopoly, because the interest of private property has invented it. The modern whimsy of a few money-grubbing commercial hucksters becomes irrefutable as soon as it delivers waste products to the ur-Teutonic interest of land and soil.

The wise legislator will prevent crime in order not to have to punish it, but he will prevent it not by preventing the sphere of right, but by depriving every urge to right of its negative nature by granting it a positive sphere of action. He will not confine himself to removing the impossibility for the members of a class to belong to a higher, properly entitled sphere, but will elevate their own class to a real possibility of rights; but if the state is not humane, not rich and not generous enough for this, it is at least his unconditional duty not to turn into a crime what circumstances have only made an offence. He must correct with the utmost leniency as a social disorder what he may only punish with the utmost injustice as an anti-social crime. Otherwise he combats the social urge while imagining he is combatting its anti-social form. In a word, if popular customary rights are suppressed, the exercise of them can only be treated as a simple police infringement, never, however, be punished as a crime. Police punishment is the remedy for an act which circumstances brand as an external disorder without its being a violation of the eternal order of right. The punishment must inspire no more abhorrence than the offence; the shame of the crime must not be turned into the shame of the law; the foundation of the state is undermined if misfortune becomes a crime or crime a misfortune. Far removed from this viewpoint, the Assembly does not even observe the first rules of legislation.

The small, wooden, soulless and selfish soul of interest sees only one point, the point where it is injured, like the crude man who considers a passer-by the most infamous, most depraved creature under the sun because that creature has trodden on his corns. He makes his corns the eyes with which he sees and judges; he makes the one point where the passer-by touches him the only point wherein the essence of this man touches the world. But a man may well tread on my corns without thereby ceasing to be an honest, indeed an excellent man. Just as little as you should judge men by your corns, just so little should you judge them by the eyes of your private interest. Private interest makes the one sphere in which a man comes into hostile contact with it the life sphere of that man. It makes the law a rat-catcher who wants to exterminate vermin, for he is no naturalist and therefore sees in rats only vermin; but the state must see in a wood stealer more than a stealer of wood, more than an enemy of wood. Is not each of its citizens linked with it by a thousand vital nerves, and may it sever all these nerves because that citizen himself has wilfully severed one? The state will therefore see even in a wood stealer a human being, a living limb in which its heart’s blood circulates, a soldier who must defend the fatherland, a witness whose voice must be valid in court, a member of the community who must perform public functions, a family father whose existence is sacred, and above all a citizen of the state; and the state will not lightly exclude one of its members from all these attributes, for the state amputates itself whenever it makes a criminal of a citizen. Above all, the ethical legislator will regard it as the most serious, painful and dangerous task to subsume a previously blameless action under the sphere of criminal actions.

Interest, however, is practical, and nothing in the world is more practical than to strike down my enemy! “Who hates a thing and would not willingly kill it!” Shylock already teaches. The true legislator may fear nothing but injustice, but legislative interest knows only fear of the consequences of right, fear of the evildoers against whom it makes laws. Cruelty is the character of laws dictated by cowardice, for cowardice can be energetic only by being cruel. Private interest is always cowardly, for its heart, its soul, is an external object which can always be snatched away and damaged, and who does not tremble before the danger of losing heart and soul? How should the self-interested legislator be humane, since what is inhuman, an alien material essence, is his highest essence? Quand il a peur, il est terrible [When he is afraid, he is terrible], says the National of Guizot. This device can be inscribed over all legislation of selfishness, hence of cowardice.

When the Samoyeds kill an animal, they assure it most earnestly before skinning it that only the Russians have caused this evil, that a Russian knife is cutting it up, and that therefore vengeance is to be taken only on the Russians. One can turn the law into a Russian knife, even without having any pretensions to being a Samoyed. Let us see!

Regarding § 4, the Committee proposed:

“If the distance is more than two miles, the denouncing forest warden shall determine the value according to the existing local price.”

A deputy from the towns protested against this:

“The proposal to have the value of the stolen wood fixed by the forester who makes the complaint would be very questionable. Certainly, fides is due to the official making the complaint, but only with regard to the fact, by no means with regard to the value. The latter should be determined according to a rate proposed by the local authorities and fixed by the Landrat. It is, to be sure, proposed that § 14, according to which the forest owner is to receive the fine, be not adopted,” etc. “If § 14 were retained, the provision in question would be doubly dangerous. For the forester who is in the service of the forest owner and is paid by him must, as lies in the nature of the situation, set the value of the stolen wood as high as possible.”

The Assembly approved the Committee’s proposal.

We see here the constitution of patrimonial jurisdiction. The patrimonial protective servant is at the same time partial judge. The determination of value forms part of the judgment. The judgment is therefore already partly anticipated in the denouncing protocol. The denouncing forest warden sits in the judicial college, he is the expert by whose judgment the court is bound, he performs a function from which he excludes the other judges. It is foolish to oppose the inquisitorial procedure if there are even patrimonial gendarmes and denunciators who at the same time judge.

How little, apart from this fundamental violation of our institutions, the denouncing forest warden possesses the objective capacity to be at the same time valuer of the stolen wood becomes self-evident when we consider his qualities.

As a forest warden, he is the personified protective genius of the wood. Protection, and especially personal, physical protection, requires an effective, vigorous love relationship of the forest warden to his protégé, a relationship in which he as it were grows together with the wood. Everything must be precious to him, must have absolute value for him. The valuer, on the other hand, behaves with sceptical mistrust towards the stolen wood, he measures it with a sharp, prosaic eye against a profane measure and tells you to the last farthing how much it is worth. A protector and a valuer are as different things as a mineralogist and a mineral dealer. The forest warden cannot estimate the value of the stolen wood, for in every protocol in which he values what has been stolen, he values his own value, because the value of his own activity, and do you think he will not protect the value of his object just as well as its substance?

The activities that are assigned to a man whose official duty is brutality contradict each other not only in relation to the object of protection, they contradict each other just as much in relation to persons.

As forest warden of the wood, the forest warden is supposed to protect the interest of the private owner, but as valuer he is just as much supposed to protect the interest of the forest offender against the extravagant claims of the private owner. While he may just have been operating with his fist in the interest of the wood, he is immediately afterwards to operate with his head in the interest of the enemy of wood. The embodied interest of the forest owner, he is supposed to be a guarantee against the interest of the forest owner.

The forest warden is furthermore a denunciator. The protocol is a denunciation. The value of the object thus becomes the object of the denunciation; it loses its judicial propriety, and the function of the judge is most deeply degraded, since for a moment it is no longer distinguishable from the function of the denunciator.

Finally, this denouncing forest warden, who is suited to be an expert neither as denunciator nor as forest warden, is in the pay and service of the forest owner. With the same right one could leave the valuation to the forest owner himself on oath, since he has in fact merely taken on the shape of a third person in his protective servant.

But instead of finding this position of the denouncing forest warden even questionable, the Assembly, on the contrary, finds the only provision questionable which still constitutes the last semblance of the state within the woodland splendour, namely the life-long appointment of the denouncing forest warden. The most violent opposition is raised against this provision, and the storm scarcely seems to be calmed by the statement of the rapporteur:

“that earlier Assemblies had already recommended the renunciation of life-long appointments, but that the state government had only declared itself against this and had regarded life-long appointment as a protection for the subjects.”

Thus the Assembly had already earlier haggled with the government over the renunciation of the protection of its subjects, and the Assembly has stuck to its haggling. Let us examine the reasons, as magnanimous as they are irrefutable, which are put forward against life-long appointment.

A deputy of the rural communes

“finds that the condition of credibility through life-long appointment imperils the small forest owners very much, and another insists that the protection must be equally effective for small and large forest owners.”

A member of the Estate of Princes remarks,

“that life-long appointments for private persons were very inadvisable and were not necessary in France to gain credence for the protocols of the forest wardens, but that something must be done to check the spread of the offences.”

A deputy of the towns:

»all reports of duly appointed and sworn forestry officials must be given credence. Appointment for life is, so to speak, impossible for many communes and particularly for the owners of small plots. The ruling that only those forestry officials who are appointed for life shall have _fides_ would deprive these forest owners of all forest protection. In a large part of the province, the communes and private owners have entrusted, and have been forced to entrust, the field wardens with the protection of their forests as well, because their forest property is not large enough for them to appoint their own foresters for this purpose. It would be strange if these field wardens, who are also sworn in for forest protection, should not have full credence when they establish a case of timber removal, whereas they enjoy _fides_ when they make reports about discovered forest offences.«