Marxist Legal Theory
Marxist Legal Theory Meaning
Marxist theory is first and foremost one of capitalism. Theory of Marxism is a theory of law within capitalism. There are two fundamental questions in relation to this theory. First, is there a Marxist theory of law? This asks whether this is a Marxist theory at all, and is the most problematic of all questions, since historically there have been many theories in existence. There have therefore been many claimants to that theory of ‘Marxism’ – as a result there may be many theories of law which appear to be Marxist. In addition the question over whether there is a theory of law in Marxism is equally problematic: each possible Marxist theory has a particular vision of law. They share certain common characteristics, but they also diverge in interesting and important ways. Historically Marxist legal theory was significant and important because of the existence of the Soviet Union and other communist regimes, all of which were systems of government which claimed to draw the inspiration for their legal system from Marxist theory. In the West, Marxism as a theory of both the state and society and law has also had certain important impacts, not least that to some extent in the early stages of the development of critical/feminist legal theory it played a major role.
Karl Marx
Whoever is making a claim to be a Marxist always refers to Karl Marx, who developed this theory of the world. Essentially the historical basis of theory of Marxism is a belief in a process known as dialectical materials. Each of those two parts of this descriptor is important. The first is a reference to the fact that Marx was heavily influenced by Hagel’s philosophy of history and more particularly dialectical practice. This is where you have two opposed ideas that compete and result in something new, e.g. the thesis, the antithesis, and the synthesis. For Marx, this was the philosophical process.
Theory of Marxism
Marxism is a theory about the meaning of history, which it sees as displaying steady progress towards the ultimate goal of a communist society.
It claims to be a scientific theory relying on observed data to test and verify its assertions.
Neither Marx nor Engels sought to develop a comprehensive and coherent legal theory, and their lack of interest in law was emulated by most of their successors. Marxist legal theory must thus be inferred largely from scattered excerpts, and from just one or two substantial works dealing with the subject expressly.
The superstructure
Theory of Marxism distinguished between the base of society and its superstructure, the legal system being part of the latter.
The base, he said, contained the relations of production, which depended on the technology available at the time; and
The superstructure of religion, aesthetics, politics, and law was built on that base and changed as the base changed.
Example: In the days of the hunter-gatherer there was no concept of land ownership and hence no need for any laws on the matter. The introduction of a feudal system of agricultural production led to land laws emphasising tenure from a feudal superior; and the rise of capitalism in the 17th century brought about laws which treated land simply as a commodity to be bought and sold.
Non-Marxists such as Plamenatz challenge the idea that law is confined to the superstructure, arguing that the very relations of production cannot be defined without reference to legal concepts such as ownership and contract.
Hegel
For Marx, the theory of Dialectic came from Hegel who outlined this picture of a world which contains the seeds of it own destruction, when these forces struggle, a synthesis occurs, giving birth to a new and higher developed form Thesis is met by antithesis, and from the conflict between these two emerges a new synthesis. This in turn is attacked by a new antithesis, and so on. Hegel saw history as a succession of conflicts between ideas, as freedom strove for its perfect realisation in human society.
Material dialect
Through this influence, Marx and Engels restored the Hegelian dialectic theory and placed it within a method of materialist foundation. Materialism means that Marx viewed history and philosophy and society etc in terms of material relations, i.e. the production of goods and wealth/value. His claim of dialectical materialism is that you can only understand history through this process of understanding history in terms of the dialectical proposition between a thesis and an antithesis which leads to a synthesis. He based his political theory in this process of dialectical materialism, which he saw as being grounded in the creation of ‘surplus value’. You therefore have a parasitic ruling class and a productive working class, and a system of exploitation by the parasites (capitalists). This is the materialism side of Marxist dialectical theory.
Marx discarded Hegel's idealism, however, and substituted his own dialectical materialism based on competing modes of production. Essentially, he said, there were five such modes:
Prehistoric, based on collective hunting,
Ancient, agricultural and based on slavery,
Feudal, also based on agriculture,
Capitalist, based on industrial production, and
Communist, still industrial but controlled by the proletariat.
The Ultimate Triumph of Communism - Dictatorship of the proletariat
The ultimate triumph of communism is historically inevitable. Capitalism will be overthrown by the proletarian revolution; a period of "dictatorship of the proletariat" will follow until the last reactionary elements have been eliminated, and true socialism will then take its place as the ultimate social order.
When Marx set out this prediction in the mid-19th century it may have been a reasonable guess, but there is no evidence of its fulfilment in any existing society. The aim of Marxism is to hasten the inevitable collapse of capitalism and the institution of a communist society, and to that end the Marxist seeks to criticise the existing power structures.
In particular, Marxist jurisprudence is criticism of "legal fetishism" - the idea that law occupies some special place in society.
The traditional jurist would claim, for example,
That law is necessary for social order, as for example in Hart's "minimum content of natural law";
That law is a distinct and a unique phenomenon, with a normative quality not found elsewhere and with its own institutions and methods of reasoning; and
That the Rule of Law - the idea that state power should be exercised only in ways previously announced - is essential to any fair and just society.
A Marxist would not accept any of these claims.
He might concede that they represent a persuasive interpretation of customary morality, but he would regard them as mistaken;
Public order and stability can rest on mutual self-interest just as well as on law;
He or she would say; law is really a subdivision of politics; and
The so-called "Rule of Law" is a device for the preservation of the existing social order.
Law and class
The legal system, says Marxism, is a means of preserving existing power relationships, and particularly the relationship between the dominant and the subordinate class. Marx believed in three classes:
landowners,
bourgeoisie (capitalists) and
workers (proletariat)
However expected the first to be squeezed out leaving just two for the final conflict. A class exists, said Marx, only when it is conscious of itself as such, and he doubted whether the workers had yet reached that state. His answer to claims that society was really far more complex than he suggested, with many interlocking classes and sub-classes including religious and national groups, was that only his three (ultimately two) classes had long-term existence and that all other pressure groups were temporary alliances not to be regarded as classes.
Law as tool of dominant class
An alternative approach adopted by many early Marxists, including Lenin, was a "class instrumentalist" or "class conspiracy" one in which laws were seen as commands backed by threats, addressed by the dominant class to the working masses; the "rule of law" was dismissed as a fiction.
This approach, which emphasises criminal law in much the same way overlooks the fact that a substantial body of law - company law or land law, for example - is concerned with the resolution of disputes between members of the same class.
Gramsci saw law as part of the dominant ideology, playing its part (along with schools, churches, media) in persuading the subordinate class to accept the status quo. Because the legal system is encountered frequently in daily life, its systematic articulation and dissemination of a dominant ideology are among the chief mechanisms for the establishment of an ideological supremacy. The persuasion need not be particularly blatant: it is clear, for example, that the legal system and other institutions of modern Britain give clear tacit support to the idea of private property, and so help to legitimise private ownership.
The use of law by the dominant class is illustrated by the general defences available in criminal law. Self-defence and physical duress are regarded as providing an acceptable defence (in most cases), whereas economic pressure and necessity are not. There is little if any moral difference between the person who steals to save himself from the threat of a gunman and the person who steals to save himself from starvation, but the law treats them differently.
Again, criminal law regards it as acceptable to use reasonable physical force against threats of physical violence, but unreasonable to use the same force in response to threats of unfair dismissal or forced bankruptcy.
A response to Marxism
The identification of law with the interests of the dominant class is one of the weaknesses in Marxist legal theory, because it is clear that there are at least some laws, which do not favour those interests. For example:
The laws creating the welfare state
together with others giving security of tenancy or employment and
others again seeking to protect the environment.
How can a Marxist explain such anomalies?
One explanation is that laws such as these are compromisingly squeezed out from the dominant class by a subordinate class growing in class-consciousness and increasing in power, and are the first small steps towards revolution. This view is not demonstrably wrong, but there is little evidence to support it either.
An alternative argument advanced by those who support the "class conspiracy" theory is that the existence of welfare and similar legislation can be seen as a trick of the ruling class to suppress the class consciousness keep the subordinate class unaware of their subjection and so to delay the (ultimately inevitable) revolution.
Is law of any use to the working class?
This view is contested within traditional Marxist theory: if you believe in historical materialism and the dialectical method, you have to believe that capitalism creates its own grave-diggers; the means of production essential to capitalism create the working class, and the working class will destroy the capitalist means of production.
Therefore:
It is through this struggle that positive elements (that will lead to socialism) are taken by the working class and become the seeds and source of this supposed socialist revolution. If this is true, it means that such elements exist not only in the base but also in the superstructure.
Potentially for Marxist legal theory, this means that in the superstructure and in law are the seeds of a socialist legality. This should mean that the seeds for socialist legality (the future) are present within current capitalist legality. This then is the central dilemma in the historical arguments about Marxist legal theory in the west (not in practice). If you can be loyal to historical materialism and the Marxist dialectic and subsequently argue that law somewhere contains this notion of socialist legality within capitalist relationships, then law can be usefully studied and exploited and invoked in order to represent the interests of the working class.
So what does this mean for theoretical visions of what socialist law may look like?
Which parts of capitalist will be carried over to this socialist legal system?
If you believe crude theory, any engagement with the legal system in capitalist is a waste of time and energy and the crushing of the working class.
The more sophisticated view, is that superstructural elements are more important – this means we have to look at these to use the elements of capitalist legality against capitalists, and also to discover and exploit those elements and carry them over to the new socialist legality.
E.P. Thompson argued that the rule of law is an inherently good human value – he was not talking about the rule of law as it manifests itself in particular instances; rather some notion in the more abstract sense that the rule is valuable in terms of protecting fundamental rights and concerns, including those of the working class.
The main question then is whether or not law is important. Can it be usefully employed and exploited to protect the interests of the working class, or will it always reflect the views of the dominant class and end up screwing the workers over?
Carl Wrenner and Paschukanis, suggested the ‘commodity theory’ of law: they argue what law as a superstructural element reflects is commodities and exploitation of surplus value: they suggest that contract law, with its notion of ‘exchange for value’, is in fact the classic expression of capitalist relations. Therefore in capitalist relations you can find all elements of the relationship by looking at law as a mechanism which directly or indirectly facilitates the commodity exchange relation between the two classes. You could therefore use their theories today to explain things like competition law – making sure the market works: the market is capitalism, and capitalism is the extraction of the surplus value by the producers of goods. The function of law in this notion is to perfect the market. This is the point at which Marxist legal theory comes together with right-wing Chicago school views on economics. Law is good when it ensures that commodity circulation can happen. Law is bad when commodity exchange and surplus value profits are limited.
For Law and Economics, the market economy is the embodiment of good: it is the essential condition for human life; if you have a market economy that works, you have democracy, human flourishing and happiness.
Where Marxist legal theory differs in their analysis of the ‘goodness’ of the market; they back to the base relationship that the market is based on exploitation of the weak by the strong.
Marxists argue that exploitation is the key to understanding why capitalism won’t survive, they suggest that Marxism is a humanistic theory, which carries with it, basic understandings of human value, and that exploitation is bad.– in the new socialist legality, you will then have a legal system which is characterized by the absence of exploitation. This is the synthesis, the point where capitalist law is eliminated.
‘cultural Marxism’
This idea makes arguments about how culture reflects and reinforces the dominant base relations. Cultural Marxist legal theory go beyond the crude historical materialism and essentially say that law in its manifestation as a general cultural phenomena is potentially value neutral; law didn’t come from capitalism but from pre-capitalist society.
Even in modern day capitalism you still find remnants of pre-capitalist legal rules, i.e. House of Lords. You must therefore understand the law as complex a social phenomenon which reflects historical, current and potential future values.
By analyzing both the form and content of these rules you can develop a critical theory of law which allows you to distinguish between those elements that are good and those which are bad.
E.P. Thompson and scholars of the Frankfurt School – a clear argument that there were good things in legal systems, e.g. freedom of religion and speech etc can be good things, but only if you understand that law are always part of the superstructure and not an independent set of social phenomena.
For example, you can say that free speech is good in the abstract. However, free speech occurs within the context of a base and superstructure set of arrangements which are predominantly capitalist. So, while in the abstract free speech can be great, in capitalist society today it means it is free speech for the evil capitalist (Rupert Murdoch) and none for the exploited working class.
The question that cultural Marxism always asks is not ‘is free speech good’, but is ‘what do you mean by free speech in a particular context”. Once you can see the context and the purpose to be served, it is good, so long as you are acutely aware at all times of this overriding ideological power that – allegedly - the capitalist system has.
One problem this theory has faced is that there is an inherent danger in this particular understanding of this law, especially if you instrumentalize the law to protect the interests of the working class: if you focus on the superstructure and don’t deal with the base, you can never transform the system that you seek to transform.
Revolution
The final part of Marxist theory revolves around what happens after the revolution. Socialism is nothing more than the ownership and control of the means of production by the working class. This will then give way to communism: everybody owns everything. This means that there will be law after the revolution. Socialism will have law. All of the things that are good in the law will be carried over into socialist law, and will be given their true concrete manifestation; freedom of speech will be real under socialism, because it won’t be there to protect/reinforce/manifest the interests of the few. It will rather be there to protect/reinforce/manifest the interests of the many. What will be different is the concrete context in which those freedoms manifest themselves. Also, because the base will have abolished exploitation, the superstructure will not be used to reinforce exploitation. The words may be the same but what they mean in concrete daily terms will be completely different.
Problems with the law in revolution
This is utopianism. It claims to be historical, dialectical and materialistic, but it is just old-fashioned socialist utopianism – dreams of living in a perfect society. Many criticisms go straight to this point.
What happen in between the change from capitalist to communist state, how will the law deal with ‘revolutionary justice’. It is hard to convince people that what you suggest is utopian if it means you have to kill millions of people to do it. This is not within normal definitions of humanism.
At a more practical level, assuming you can get a peaceful transformation to socialism, what will be the nature of law in this particular ideal? More particularly, in Marxist legal theory, the problem exists in property. There is an idea of abolition of private property: will it result in having the mythological evils of Sovietization – nobody owns anything, and everything is in high demand and low supply.
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