In the social production of their existence, men inevitably enter into definite relations, which are independent of their will, namely relations of production appropriate to a given stage in the development of their material forces of production. The totality of these relations constitute the economic structure of society, the real foundation, on which arises a legal and political superstructure and to which correspond definite forms of social consciousness. Karl Marx, Preface to A Contribution to the Critique of Political Economy, 521.1
Marxist jurisprudence posits that legal relations are determined by the economic base of particular kinds of society and modes of production.2 Marxist thought’s primary focus rests on political economy and the corresponding power relations within society, providing the most extensive critique to date of liberal tradition on which many of our legal presuppositions are founded. To this end, this essay examines law, its structure, motivation and consequences for justice and rights from a Marxian jurisprudential perspective.
Marxism and Law
Your ideas are but the outgrowth of the conditions of your bourgeois production and bourgeois property, just as your jurisprudence is but the will of your class made into a law for all, a will, whose essential character and direction are determined by the economical conditions of existence in your class. Karl Marx, The Communist Manifesto, 24.
Law is not of central concern to Marxists jurisprudentialists, as law in the capitalist mode of production is seen as an instrument of class oppression perpetuated as a consequence of its particular historical, social and economic structures. Indeed, wishing to avoid liberal predisposition towards legal fetishism, Marxists deny the degree of importance jurisprudence typically affords law in analyses of the composition and determination of social formations.3 What is Marxism? Marxist theories of political economy, expounded upon the notions of Karl Marx (1818-83) and Friedrich Engels (1820-95), consider law an instrument of class oppression that benefits the ruling class through oppression of the proletariat. The common law system of criminal and civil law, which protects personal and private property rights, as well as facilitating predicability in social life, is regarded as “no more than a system of coercion designed to protect bourgeois ownership of the means of production”.4 Yet, despite Marx and Engels’ failure to develop a systematic approach to law5, and claims of failure in Eastern Europe and the Soviet Union, Marxism’s materialist emphasis, particularly concerning the notion of alienation and its consequences as outlined by Ollman6, assists its contemporary paucity.7 Historical Materialism Men have history because they must produce their life, and because they must produce it moreover in a certain way: this is determined by their physical organisation; their consciousness is determined in just the same way. Marx, The German Ideology, 49.
The determinist relationship between the economic base and social superstructure, known as Historical Materialism, is first described in The German Ideology.8 Historic materialism contends that the catalyst behind societal evolution is materially determined, being predicated on contradictions between the forces and means of production. As “it is not consciousness that determines life, but life that determines consciousness”9, law is a reflection of the economic base, rather than the reserve as liberals such as Dworkin would propose.
Under increasing industrialisation Marx foresaw crystallisation of society into two classes; bourgeoisie and proletariat. These relations of production developed due to particular forces of production under the capitalist mode of production that coerced the bourgeoisie to extract surplus value as profit from the proletariat. Laws, as Marx detailed in Capital, as one element of the social superstructure, assisted in forcing down wages.10 Collins characterises two Marxist approaches; crude materialism, in which law is simply a reflection of the economic base; and secondly, class instrumentalism; in which rules emerge because the ruling class want them to.11 This distinction continues as an area of debate, as demonstrated by O'Malley’s attacks of Quinney and Chambliss’ crude materialist claim that law is a direct tool of powerful classes or groups, favouring the more interactionist, and less conflict premised theory of legislative change.12 The Relative Autonomy Thesis is such a theory. Contemporary Marxists such as Marcuse, suggest mechanisms analogous to the Factory Acts and Vagrancy Acts remain instruments of the ruling class perpetuating conditions reinforcing this arrangement, especially in relation to the alienating nature of modern technological rationality.13 Base and Superstructure in the Capitalist Mode of Production Much of our law, such as Contract, Property and Commercial Law, is predicated on the existence of the capitalist mode of production. As Marx’s major project was the critique of capitalism, irrespective of a belief in revolution, Marxism has a great deal to notify us of in our contemporary jurisprudence. Marxism postulates that in the social production of their existence, people, independent of their will, enter into definite relations of production appropriate to a given stage in the development of the materials forces of production.14 Consequently the societal superstructure, including but not dominated by law, amongst other hegemonic devices, is determined by the economic base and the organisation of power in society.15 Marxist jurisprudence concentrates on the relationship between law and particular historical, social and economic structures, seeing law, unlike liberal theory, as having no legitimate primacy. Frequently encountered legal rules and doctrine, argue Gramsci16 and Althusser17, establish modern liberal jurisprudential hegemony.18 Scientific Socialism Marxist epistemology, with dialectic materialism as the centrepiece of Marxism’s scientific claim, proclaims in real life, where speculation ends, positive science; the representation of the practical activity, of the practical progress of development of men, begins.19 Whilst Marx’s materialism does not refer to the assumption of a logically argued ontological position, Marx adopts an undoubtedly Realist position, in which ideas are the product of the human brain in sensory transaction with a knowable material world.20 These claims contrast with those of natural lawyers such as Aquinas who believe religion should normatively guide law; those desiring utilitarian tendencies such as Austin and Bentham; or objective consistency as some positivists such as Hart, or perhaps integrity, as perhaps only Dworkin can fully endorse. Nevertheless, whilst debate as to the scientific credentials of Marxism continue, Collins claims Marxism’s desire for class reductionism to explain the dynamic interaction between man and nature risks misconstruing the diversity of social phenomena in order to confirm the ‘rigid systemic framework of historical materialism’.21 Law and the Dictatorship of the Proletariat
Law, morality, religion, are to him so many bourgeois prejudices, behind which lurk in ambush as many bourgeois interests. Karl Marx, The Communist Manifesto, 18
Marxism saw development of the relations of production dialectically, as both inevitable, and creating hostility. Accelerated by increased class consciousness, as the contradictions of capitalism perforate the bourgeois hegemony, inevitable revolution and a dictatorship of the proletariat would facilitate “socialised production upon a predetermined plan.”22 Given the scientific nature of Historic Materialism, and upon recognising the role the state and its laws supply, the proletariat will seize political power and turn the means of production into state property23, then according to Marxist jurisprudence, “As soon as there is no longer any class to be held in subjection; as soon as class rule and the individual struggle for existence … are removed, nothing more remains to be repressed.”24
Communism and the End of Law The meaning of history, that man’s destiny lies in creation of a Communist society where “law will wither away”25 , as men experience a higher stage of being amounting to the realisation of true freedom, will after transition through Socialism, be achieved.
Justice and Rights Communism abolishes eternal truths, it abolishes all religion, and all morality, instead of constituting them on a new basis.
Karl Marx, The Communist Manifesto, 24
Marxism argues there is no absolute concept of justice, justice being dependent on the requirements of a given mode of production.26 Lukes claims Marx believes justice, “Does not provide a set of independent rational standards by which to measure social relations, but must itself always in turn be explained as arising from and controlling those relations”.27 Marxism believes that rights are simply a bourgeois creation, and that justice is something only the rich can achieve in capitalist modes of production. Anatole France (1894) encapsulated this distinction between formal and substantive justice as entitlement, drawing attention to “the majestic egalitarianism of the law, which forbids rich and poor alike to sleep under bridges, to beg in the streets and to steal bread.”28 Formal justice as entitlement therefore allows equal opportunity to the individual without any reference to the unequal ability to use it, with rights only being anti-socialist if individuals are taken to be “inherently and irredeemably self-interested.”29 Marxist dispute over how rights and justice will operate in practice are answered by the materialist proposition that the “distribution of burdens and benefits should not be taken in accordance with a book of rules, but in the light of the objectives of social policy.”30 Campbell distinguishes between Socialist and Bourgeois Rights, arguing that an interest based theory of rights, rather than the contract based notions such as Pashukanis’ incorporated in his commodity exchange theory of law31, allow protection of the individual32, thereby negating the logical connection between rights and justice.33 In Summary Marxist jurisprudence and Marxist critiques of law provide invaluable challenges to our thinking as people under law in a liberal democratic society. This essay is only the briefest of introductions in a field rich with reflections concerning the assumptions we construct into our law. Whether you accept the claims of its doctrine, its influence on shaping the society we live in is more significant than most of us realise.
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1Marx, K., ‘Preface to A Contribution to the Critique of Political Economy’ in Karl Marx and Frederick Engels Selected Works, Moscow: Progress Press, 1989 521.
2Balbus, I., ‘Commodity Form and Legal Form’ in Reasons, C., The Sociology of Law, Toronto: Butterworths, 1978 83.
3Collins, H., Marxism and Law, Oxford: Oxford University Press, 1987 98.
4Barry, N., An Introduction to Modern Political Theory, London: Macmillan, 1989 53.
5Cain, M., and Hunt, A., 1979, Marx and Engels on Law, London: Academic Press.
6Ollman, B.,1976, Alienation; Marx’s Conception of Man in Capitalist Society, Cambridge: Cambridge University Press.
7Collins, H., op cit., 10.
8Marx, K., and Engels, F., 1976, The German Ideology, Moscow: Progress Press.
9Marx, K., The German Ideology, Moscow: Progress Publishers, 1976 42.
10Marx, K., ‘Bloody Legislation against the Expropriated, from the end of the 15th. century: Forcing Down Wages by Acts of Parliament’ in Capital, 1986 686.
11Collins, H., Marxism and Law, Oxford: Oxford University Press, 1987 24.
12O’Malley, P., ‘Theories on Structure Versus Causal Determination’ in Tomasic (ed.) Legislation and Society in Australia, Allen and Unwin, 1980 140.
13Marcuse, H., One-Dimensional Man, Boston: Beacon Press, 1968 xv.
14Marx. K., Preface To ‘A Contribution to the Critique of Political Economy’ in Karl Marx and Friedrich Engels Selected Works, 1989 521.
15Collins, H., op cit., 9.
16Gramsci, A., Selections from the Prison Notebooks, London: Lawrence and Wishart. 1971 195.
17Althusser, L., ForMarx, London: New Left Books, 1977 114.
18Collins, H., Marxism and Law, Oxford University Press, 1982 50.
19Marx, K., The German Ideology, Moscow: Progress Publishers, 1976 38.
20Giddens, A., Capitalism and Modern Social Theory: An Analysis of the writings of Marx, Durkheim and Weber, Cambridge: Cambridge University Press, 1971 21.