请将“Each approach is correct in its objection to the other: neither is law a procedure that runs purely systemically, and which can do without social hegemonic consensus, but nor can it be normatively elevated, as is the case in Habermas. It should be the medium of self-organisation; but it cannot achieve that precisely because of the independence Luhmann demonstrates.
A materialist theory of law, which starts from this point and with this ‘baggage’, therefore has to look for the ‘de-paradoxification’; of this paradox: How then does law become simultaneously independent, systemically sealing itself off, andyet in possession of a limited potential for emancipation? How is it simultaneously a ‘technology of power’ and a moment limiting domination? How is it simultaneously based upon consensus and on the immobilisation of this consensus? It has to be possible to carry the criticisms that have been raised along this arduous and contradictory path, while at the same time elaborating the problems behind them in another ‘descriptive mode’. This applies most of all to the elimination or ghettoisation of subjects and the blocking out of the gender relation, as well as the complete marginalisation of relations of power. In contrast to the two big paradigms ‘which are consolidated on the basis of a strong conceptual arsenal’,4 however, the reader now has to brace themselves for the arduous journey into the tangle of reconstruction and construction of what, in the Marxist tradition, has been elaborated concerning law over the last hundred years. 
PART 2
Reconstructing Materialist Legal Theory 
Introduction to Part 2
The Marxist theory of law ultimately has to prevail in confrontation with competing bourgeois theories. To what extent it does so cannot yet be decided. For this purpose, the knowledge of this science - the examination of the attempts made thus far - is too negligible.1
Let us begin by reconstructing the materialist theory of law. Following Habermas’ definition, the first step will consis	cking’ previous
theories. This means their premises are	ued in order to
test which insights and limits they provid	l theory, always
within the framework of the issues outline	e time, the the
ories will also be confronted with each other. The next chapter will then provide a reflection on the results and bring them together in a new ‘construction’. In the representation of the theories I follow a chronological order, which allows me to trace the development of questions and problems as well as their various updates. In this I will limit myself solely to exemplary approaches - a comprehensive review of all of them is not possible here. The selection is, however, intended to reflect the range of discussions.
Let us start the representation with the 1920s, when for the first time a wide-ranging debate about the relationship of law and social structure in capitalist societies took place in Germany. Of course, a materialist legal theory might be expected to start with Karl Marx. However, if this were possible, many ‘attempts at deduction’ would probably not even have been undertaken, many arguments about interpretation never fought. Marx had no explicit, comprehensive legal theory, such as for example Kant’s or Hegel’s, any more than he possessed a theory of the state, whose function he planned to dedicate a separate study to.2 While many passages where he addresses law can be found, such as in the Critique of Hegel’s Philosophy of Right, On the Jewish Question, or the Critique of the Gotha Program, they are not based upon a systematically developed legal theory.
In consequence, Marxist-oriented jurists and theorists of the state3 have subsequently begun to make use not of Marx’s words, but of his method, his political and economic analyses, or his historical studies in order to approach the perspective of law. They thus embarked upon the journey towards a materialist theory of law. This is the path I will retrace and then take anew.
The next stage is represented by the historic period of the 1970s, which was again shaped by social conflicts and debates, here now predominately about the role of the state. This is another heyday of Marxist legal theory. This time, however, two different directions emerge: on the one hand an Italian and French current based upon Althusser’s structuralism and Gramsci’s concept of hegemony, and on the other hand the Hegelian-Marxist tradition of critical theory. Their relationship remains somewhat unreconciled until now. As I consider this controversy no longer fruitful, as will be demonstrated in greater detail, I will attempt to represent the two strands separately in their differences, but bring them back together in the following chapter on reconstruction. Even more decisive for legal theory was, however, the so-called ‘crisis of Marxism’ at the start of the 1980s, as Althusser also called it.4 In doing so he above all demanded a confrontation of Marxism with the history made in its name since the Russian October Revolution, as well as a consideration of the new social movements, whose politics can no longer simply be subsumed under the Marxian matrix. Finally, he pointed out the deficits of Marxism until then in relation to the sphere which Marx had called the ‘superstructure’, that is, the areas of state, law and ideology, which are seemingly merely derived from the ‘economic base’. In doing so Althusser did not consider the crisis as an end point, but precisely as a possibility to revitalise theory through the challenges of the new social struggles and to liberate it from dogmatic strictures.5 Both (post)structuralism in France and critical theory in Germany stand for an undogmatic and fruitful approach to this issue. That legal theory, however, has nonetheless not recovered from this crisis, is the main motivation for the present study. The dialectic of ‘facticity and norms’ might really make law an ‘even “stranger” matter than a commodity’.6 It was very tempting to undervalue its independent significance compared to political economy and the state. An understanding of the facticity of norms makes high demands of any legal theory.
Moreover, it is a precarious subject for any social order which claims to over-come its inherent violence to understand that ‘law is at the intersection of emancipation and violence’.7 Marxist legal theory, however, which at its beginnings dedicated itself to the deconstruction of idealist legal theory, and mainly fought the notion of law’s social independence, neutrality and freedom from domination, had to expect important obstacles:
Law traditionally appears to be sceptical of anything that gives itself revolutionary airs. On the other hand Marxists have also contributed sig-nificantly to this (mis)understanding, when they understood law ... solely as an ideology of domination and denounced it accordingly.8
Therefore Pashukanis already noted that ‘there is very little Marxist literature on the general theory of law’, and that ‘hence Marxism is just beginning to conquer new territory’.9 Even up to the 1970s, those active at the time pointed to this statement by Pashukanis and applied it with certain modifications to the situation at the time: ‘The legacy of Marx and Engels still awaits its scholarly exploration on the territory of legal theory’;10 or, less optimistically: Marxist legal theory is ‘the stepchild of Marxist theoretical development’^ Even in 1992 Andrea Maihofer still harboured an ‘unease’ with regards to Marxist legal theory thus far. Not only had it ended in a theoretical dead end, it had also become increasingly irrelevant. This was all the more tragic as it ‘could be a productive alternative in the contemporary legal theory debate and an important critical corrective’?2 The problem goes so deep that none of the aforementioned authors still engages in materialist legal theory. Either they have said goodbye to legal theory or to the materialist approach - a development which is somewhat atypical compared to other subject areas. It appears to be a delicate undertaking to attempt to combine those two moments. But precisely this is the aim of this study. In order to do so, however, central deficits have to be overcome. 
Those are the following:
-	Marxist legal theory has often argued functionally and reduced law to the reproduction of capitalism.
-	This was not infrequently coupled with the failure to conceive of the materialist ‘primacy of existence’ (Charim), that is, the precedence of the material context of reproduction, in a non-economistic manner.
-	This almost invariably also leads to a failure to consider other structuring principles for legal theory, such as the hierarchically structured differences (gender, race, sexuality), and thus manifests itself in class reduction- ism.
-	Very similar to systems theory or to the democratic-normative legal theory of Habermas, materialist theories, including Foucault, have ignored practice and its actors.
-	Moreover, the role of the nation state in relation to law was overestimated in such a way that legal theory was reduced to a subsection of state theory.
-	Accordingly, almost all theories failed to grasp a central mystery of law, namely its relational autonomy, that is, its counterfactual facticity.
-	And finally, they very rarely had an answer to the fundamental question as to what role law plays for a strategy of emancipation.
The main deficit of the materialist approach in legal theory consists, to sum up, in that its social theory does not do justice to the complexity of relations of domination.13 As has been shown in the first part, the approach shares this difficulty with other legal theories. To think the ‘relative autonomy of relations of power’, repudiating the idea that power has a single source, and instead starting from an intersection of relations of powed4 - this will be a central concern of this reconstruction. This critique of the described approaches will highlight - as was already the case in part 1 - how gender relations are concep- tualised/ignored, because criticism by women and gender studies of the androcentric perspective of the major theories is extensive, and because they also addressed their own constraints in relation to other relationships of domination. I am aware of this methodological limitation. A multidimensional intersectional critique is not possible in the context of the present study. It would require a more extensive research design, namely one that in the tradition of feminist theory depends upon ‘fantasies of collective work, cooperation, and knowledge exchange in numerous subject areas’?5
The following reconstruction will develop the deficits noted above and test how far they can be overcome. Their unfulfilled potential will thus become apparent, and although it could not unfold due to the crisis of Marxism, it lives on in the legacy of those theories. 
Foundations: The 1920s and 30s
The period between the two world wars, which saw the Russian Revolution, the global economic crisis, and the rise of National Socialism and the constitutional changes it brought, led in Germany to numerous discussions of methodology and general reflections on law. These also involved Marxist theorists.”翻译为中文