17 Marx and Law

This module talks about Marxist idea and perception on law. It discusses Marx’s ideas of law which he mentioned in the book he co-authored with Fredrich Engels, The Communist Manifesto and in the essay “On the Jewish Question”. He talks about how the concept of law, state and human rights are influenced by the Bourgeoisie and how it is used against the Proletariat.

There are three basic assumptions in the Marxist theories of law, first, that law is the product of economic forces; secondly, law is considered to be the tool of the ruling class to maintain its powers over the ruling classes; finally, that law will wither away in the future communist society. However, according to Engels, state in the future will disappear. The third assumption has been repudiated and a novel concept is evolved that of ‘socialist legality’. However, in different communist countries, either the first or the second of the words in ‘socialist legality’ has been stressed.

LEARNING OBJECTIVES:

This module deals with the Marxist view on law. After going through this module, you should be able to:

• Understand the basic assumptions of the Marxist theory
• Understand the Marxist view of law and  his  critique  towards  the ideology.
• UnderstandtheBourgeoisie influence over the concept of law. Understand the reason as to why law and state came into existence.
• Understand the Marxist view of Human rights.

KEY WORDS

Bourgeoisie, Proletariat, Class Conflict, Base, Superstructure, Repressive State Apparatus, Ideological State Apparatus, Human Rights, Relations of Productions, Capitalism, Class Interest.

INTRODUCTION

“Law, morality, religion, are to [the proletariat] so many bourgeois prejudices, behind which lurk in ambush just as many bourgeois interests”1

Karl Marx provides a perspective about what the law means, which in order to appreciate, is important to place it within Marx’s overall socio-economic and political context.2 In the Marxist view of law, the bourgeoisie and the proletariat are the two classes fighting for power. Societies that allow and give freedom to the bourgeoisie to formulate laws and make moral decisions are unjust societies.

In the Communist Manifesto, Marx explains that the law is simply a reflection of the desires of the Bourgeoisie class. He says to the Bourgeoisie that “[Y]our 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 economic conditions of existence of your class”3. Marx criticizes the entire tradition of government under the rule of law as no more than a mere expression of the “bourgeois” aspirations.

BASIC ASSUMPTIONS OF MARXIST LEGAL THEORY

In the Marxist theory of law, there are three basic assumptions. The first one is that law is the product of economic forces. Marx said that the way you work will shape your law and other institutions. He believed in the ‘two level model’ in which ‘economy’ was the ‘base’ and law as well as other institutions were in the ‘super-structure’. Marx was of the opinion

1 Karl Marx and Frederick Engels, Collected Works, 40 vols. (New York, NY: International Publishers, 1976), 6:494–5.

2  Legaltutors.com ‘Karl Marx’

3    Marx and Engels, Collected Works, 6:501.

that the most important sphere of relations to consider was the relations of economic production. However, Engels admitted that the various components of the superstructure, including the institution of the law and other norms, exercise a reciprocal effect upon the economic basis and may, within certain limits, modify it4. Thus, if we understand the way in which societies produced and reproduced the basic goods and services which formed their wealth, then we could understand much of the other things going on in those societies. It would be easier to explain their characteristic religious, political, moral, artistic, and legal principles. His main argument was that in a capitalist economy, the working classes (or proletarian) were exploited by the capitalist class (or the bourgeois).

The second important doctrine is the doctrine of the class character of law. According to Marx and Engels, law is considered to be the tool of the ruling class to maintain its powers over the ruling classes. Law is characterized as an expression of class will and it is the law and the state, and the means of production which determine the character of the various classes in a society.

The third doctrine is what is known as the ‘withering away’ of law in the future communist society. There is some controversy about this doctrine. Engels anticipated that the society of the future would substitute (for the government) the administration of things and that state in such a society would wither away5. The ‘withering away’ phenomenon was explained by Eugene Pashukanis6. He argued that law is a social regulator in a market economy in which independent private producers and owners of commodities exchange their produce by means of contracts and transactions. He believed that law was out of place in a socialist society which is characterized by unity of social purpose. He maintained that legal rules for settling disputes between individuals and groups will not be needed in a socialist society. Consequently, according to this view, when classes disappear after the revolution, there is no need for a legal apparatus to continue and encourage class rule. So, poverty and exploitation, which are see as the root causes of a crime, will vanish within the new classless society and people will develop into ‘group creatures’ having no need for codes and rules so that the need for institutionalized law vanishes.

4 Letter of Engels to C. Schmidt dated October 27, 1890, in Karl Marx and Frederick Engels, Selected Works (Moscow, 1955), Vol. 2, p, 494.

5 Frederick Engels, Anti-Dühring, transl. E. Burns (New York, 1934), p. 309.

6 He was raised to the dean of Soviet legal philosophers but was eventually executed as a traitor to Marxism. See, Edgar Bodenheimer, Jurisprudence: the Philosophy and the Method of the Law (Cambridge:

Harvard University Press, 1974), p. 82.

MARXIST LEGAL THEORY

Marx’s ideas about law were expressed mainly in the Communist Manifesto and On the Jewish Question which he published in collaboration with his friend Friedrich Engels in 1848. In Marxist thought, material relations of production (economy) constitute the base, which determines the superstructure such as politics, religion, education, culture and law. Capitalism is inconsistent with our species-being, because it alienates us from labor, our production and from each other. The class conflict to which this leads will eventually lead to the demise of capitalism. To avoid this, capitalist relations of production need to be regulated, and this is the main task of the superstructure.7

One way of viewing the relationship between the economic base and law (as an element of superstructure) is instrumentalist. In simple words, according to this view, the law means the oppression and domination of the proletariat by the ruling class (the bourgeoisie). The latter has stronghold on the State and its law and uses it to promote its interests. It is on the basis of this that, according to Marx, law is present in all phases of class domination prior to the proletariat revolution but not to carry equal emphasis in all stages of development. Thus law is perceived as having a relatively minor role in the phase of feudal domination but started to make its role more prominent during the bourgeoisie phase, because of its least close relationship with institutions of private property.8

As Fredrich Engels said:

“…law is sacred to the bourgeoisies, for it… enacted …for his benefit… because the English bourgeoisies finds himself reproduced in his law… the policeman’s truncheon… has for him a… soothing power. But… the working man knows… that the

7 J.E. Penner and E. Melissaris, “McCoubrey & White’s Textbook on Jurisprudence”, Oxford University Press 5th Edition

8  ibid

law is a rod which the bourgeoisie has prepared for him; and when he is not compelled to do so he never appeals to the law.”9

Marx and Engels themselves devoted relatively little attention to law. Marx concentrated on discrediting the illusion that law is a human intervention, or, as he put it, matter of “mere will”. Jurists tell us, he says, that individuals can choose to enter into relations with others through making contracts and that the content of these relations rest purely on the individual free will of the contracting parties”. But in fact, neither the general nor the private will can determine the existence of property, and legal titles as such are meaningless since the legal owner who cannot command the capital to cultivate his land really “owns nothing as a landed proprietor”. The true nature of law can be grasped only by recognizing its link with the state.

Because the ruling class declares itself by setting up institutions that constitute the state, it is supposed that law rests on will, “indeed on the will divorced from its real basis – on free will”. But in reality the law, like all political institutions, is an instrument through which the ruling class exercises its power to satisfy its selfish interests. What the bourgeoisie describe as the freedom to make legal arrangements is not only the reflections of the forms of relations in production at any particular time, nor does the belief that law presupposes equality, a belief promoted by the ruling class to correlate with any reality because law arises from the dominance of one class over the others. Although law makes it possible for the “personal rule” of the dominant class, it is nothing but the expression of the will, that is to say, the common interests of the ruling class.

One Marxist named Louis Althusser had said that there are two courses by which the decision class can push its power over different classes:

1. By the utilization of power or force, (for example, police and armed force) .He called these” Repressive State Apparatuses”.
2. By the utilization of belief system, ideology and socialization, (for example, broad communications, open promulgation, social specialists, and so forth.) He called these “Ideological State Apparatuses”.

Law forms a part of the Repressive State Apparatuses. The More dominant class, i.e., the bourgeoisie class makes use of the system of law to exert their dominance over the proletariat.

9  Fredrich Engels and Karl Marx, “Collected Works” (London: Lawrence and Wishart, 1975) pg 514

MARXIST VIEW OF LAW, STATE AND POLITICS

The doctrine of state and law is part of a broader whole, namely, the complex of sciences which studies human society which in turn is itself determined by the history of class struggle. Marxist theories of the State go together with the theory of historical materialism propounded by Marx and Engels. One view of the state and law, which is predominant in Marx’s writings, is that they are a notion of the economic interests of the bourgeoisie class. The state is thus viewed as an ‘executive committee to manage the affairs of the bourgeoisie’. The state acts as its oppressive agent in the civil society, suppressing the interests of proletarian and favoring capitalism. The personnel of the state owe their allegiance to only one particular class – the bourgeoisie. Lawyers would be viewed as waged servants of this class. Law is thus, part of this oppressive state mechanism and concentrates  the  ideological bewilderment of bourgeois intellectualism. The bourgeois class dominates political power through its domination of economic ability. 10 The bourgeois state and legal system are based on class phenomena. According to Marx, class refers to large social groups which are linked together in certain social relations within a mode of production. Each class receives differential rewards, power, and status. Relations between classes tend to be conflictual. Within the instrumental perspective, the state and legal system are seen to focus on the interests of the dominant class. The state is not a representation of any collective good or impartiality. It is, rather, important to certain specific economic interests in society. Class interests are

10 Andrew Vincent , ‘Marx and Law ‘,Journal of Law and Society, Vol. 20, No. 4 (Winter, 1993), pp. 371-397

seen to head the state structure in the interests of that class – the bourgeoisie in capitalist society. The history of states is therefore incorporated under class interest.11

The above view reflects woefully on a number of issues. First, there does not appear to be any difference between a democratic rule-of-law constitutional state (Rechtsstaat) and an unconstitutional, undemocratic despotism. Both are simply exploitative class-based entities. The former state simply shields its basic exploitative character more successfully, particularly under guises like the ‘rule of law’. Secondly, the ‘general’ rule-of-law principle and ‘particular’ property, contract or criminal laws, are simply there to buttress the property owners of capitalism. The rule of law is a typical example of legal fetishism, namely, giving law a false autonomy from the economic and class base of society. Thirdly, Marx suggests that the so-called equal rights of liberal states have grossly unequal effects. The rights of human beings are in reality the rights of bourgeois men in civil society. They protect individual capitalists in their exploitative practices and they protect the unequal economic results of such practices. Rights are associated with individuals who ‘own’ them in order to protect private interests. Rights thus shield the basic inequalities and exploitative practices of bourgeois culture. Bourgeois culture ignores material inequalities and slavishly adheres to formal legal, moral or political equality of rights (which favor the Bourgeoisie) Marx found this whole scenario profoundly objectionable.12

From the same perspective, equally, the justice that we observe in liberal societies is just another aspect of the ideology of capitalism. It focuses minimally on how goods might be distributed (if it gets as far as distributive justice) and ignores the massive inequalities implicit in the production process itself. In other words, it shuts the stable door after the capitalist horse has bolted. Justice is not a virtue for communists. Marx thus quite explicitly takes an anti-justice and anti-rights stance. With genuine communism, there would be no classes, no coercion, no conflict, and no private ownership; in consequence, there would be no need for justice or right claims. If there is abundance and communal ownership, then there is no reason for principles of allocation or any allocating or adjudication mechanisms. In sum, Marx objects to the whole notion of the “juridical legal state” as a complex sham. As law is integral to the idea of the state in Marx, so the anti-statist stance of communism implies the abolition of law.13 The stricter class view of the state and law also suggests that if there were no class there would, in turn, be no law and no state. Class conflict is the prerequisite of the state. This view was later crystallized in Lenin’s work, The State and Revolution. This idea, in turn, gives rise to the idea (initiated by Engels and carried on by Lenin, although many would contend it was also present in Marx) that the state and legal order will ‘wither away’. In this sense a communist society would be lawless and stateless (in a strictly descriptive sense). Thus, from the standpoint of a strict materialism, the state is not a major player. The end result of this looks very much like communist anarchism, although Marx himself argued fiercely against such a conclusion and showed only vitriolic

11ibid

12 ibid

13ibid

contempt for anarchists like Proudhon and Bakunin. However, Marx never resolved this issue of the relation between communism and mainstream anarchism.14

MARXISM AND HUMAN RIGHTS

Marx’s writings from the “Jewish Question” onward are wholly dismissive of all claims made to the lasting validity of unremovable human rights “bourgeoisie freedom”. The idea of the individual’s rights, Marx explains, implies a society in which the interests of each person is naturally and inevitably opposed to the interests of others, a society incurably torn asunder by the clash of private aspirations. The dominant motivations in this society are bound to be egoistic – not as a result of the corruption of human nature – but because of the character of the economic system, which is inevitably laden by conflict. All rights and liberties in bourgeois society simply assert and codify the simple fact the each individual’s aspirations and interests inevitably conflict with, and are limited by the interests and aspirations of others. Since the civil society is a place of all-pervasive and incessant war, where no real community is possible, the state steps in to provide an illusory unity, to set limits to the conflicts by imposing restrictions on hostilities. These restrictions appear in the form of civil liberties, which necessarily take on a purely negative character. Ideological legitimacy is given to the system by various social contract theories.15

‘Equal rights’ says Marx, we indeed have here; but it is still a ‘bourgeois’s right’ which, like every right, presupposes inequality. Every right is an application of a uniform standard to different people who in fact are not identical, are not equal to one another; and therefore ‘equal right’ is really a violation of equality and injustice. Indeed every person, having performed as much social labor as another, receives an equal share of the social product […]16 People, however, are not equal; one is strong, another is weak; one is married, another is not; one has more children, another has fewer, and so on.17

SUMMARY

1. Marxism is what is known as conflict theory because it states the conflict between people in the society. It is a combination of critiques, political goals and theories scattered around the theories of criticism of Karl Marx.
2. Karl Marx provides a perspective about what the law means, which in order to appreciate, is important to place it within Marx’s overall socio-economic and political context.
3. In the Marxist view, the bourgeoisie and the proletariat are the two classes fighting for power. Societies that allow and give freedom to the bourgeoisie to formulate laws and make moral decisions are unjust societies.

14ibid

15 Marxism and Human Rights, Leszek Kolakowski, Vol. 112, No. 4, Human Rights (Fall, 1983), pp. 81-92

16 V.I Lenin, The State and Revolution [1917] (London: Penguin, 1992)

17  ibid

4. explains that law, along with the whole state apparatus exists only for the sake of private property.
5. Law will wither away in the future communist society which is characterized by unity of social purpose. Legal rules for settling disputes between individuals and groups will not be needed in a socialist society.
6. Within the instrumental perspective, the state and legal system are seen to focus on the interests of the dominant class. The state is not a representation of any collective good or impartiality.
7. For Marx, equally, the justice that we observe in liberal societies is just another aspect of the ideology of capitalism. It focuses minimally on how goods might be distributed and ignores the massive inequalities implicit in the production process itself.
8. Marx defined the state and all its laws as mere instruments of class oppression, which would have to disappear when the final stage of human evolution were finally accomplished.

CONCLUSION

To sum up, we can safely argue that the Marxian view of law is influenced by his over-all theory of state and social change. Marx regards law as a part of the superstructure. Since state is an instrument of class rule, law is made to serve the interest of ruling classes and thus an arena of class struggle. The claim made in excessive optimism that laws are made in the general interest of the public, according to Marx, is only an ideological smokescreen to ensure its obedience by all.

Did you know?

• Marx lived in terrible poverty for most of his adult life. His loyal friend, Engels helped him with 5 pounds a month on which he used it to make ends meet.
• The most interesting fact about Karl Marx is that his famous work, The Communist Manifesto, was completed within 6 weeks.
• One of the most interesting facts about Karl Marx is his attitude. When the legend was at a conference for Marxists and left in anger because he said if these are Marxists then I’m not one.

Interesting Facts about Karl Marx

• He was a journalist and philosopher
• He was the editor of the Rheinische Zeitung He worked with Friedrich Engels
• He and Engels produced the Communist Manifesto in 1848 He was expelled from Prussia in 1849
• He then settled in England (London)
• He is best known for `Das Kapital (1867) He is buried in Highgate Cemetery

Learn More

1. Pashukanis E., The General Theory of Law and Marxism (1924)
2. Collins H., Marxism and Law (1982)
3. McCoubrey & White, Jurisprudence (2012)
4. Marx K. and Engels F., The Communist Manifesto (1848)
5. Althusser L., On Ideology (2008)
6. Cain, M. and Hunt, A., Marx and Engels on Law (1979)
7. Taiwo O., Legal Naturalism: A Marxist Theory of Law (1996)