Marxist theory of law

Marxist theory of law

Marxist theory of law is mainly related to the doctrines of Karl Marx (1818-1883) and Friedrich Engels (1820 – 1895).  It is partly historical and partly sociological. ‘Marxist theory of law’ is substantially different from other theories and philosophies of law which have been discussed in legal theory.  While natural law principles have been aimed in various ways at the establishment in society of fundamental and sometimes unchanging values, it can hardly be said that any reasonably-sized community at the present day represents the practical implementation of natural law ideas.  Doctrines of natural law have had their greatest effect on systems and communities which have sought to improve their existing state or which have encountered some major practical problems which natural law can help to solve.  Analytical positivism in its different forms, relies largely on existing juridical institutions upon which and out of which an analysis of law and legal system may be drawn.  The main distinguishing feature of the ‘socialist legal theory’ is that a legal system has to be based upon the political and economic philosophy of Karl Marx and his successors.

One of the earliest documents of great importance in the development of communism in general, and of socialist legal theory in particular, was Karl Marx’s Communist Manifesto, which was printed in London in 1848. At the time both Marx and Engels were just under thirty years.  Within their strong partnership, Marx provided the philosophy and the determination to influence lives of the people, and Engels provided some substantial first hand experience of social and economic conditions in the industrial Lancashire of the early 1840s.

The contention of the Communist Manifesto is simple and is characterized by the early statement: “The history of all hitherto existing society is the history of class struggles.”  When Engels described conditions in Lancashire and subsequently took Marx on a visit there, Marx realised that he had found the key to historic change.  The driving force was not in men’s minds, but in the system of production.

Since class struggle lies at the base of social conflict and social and economic development, the typical stages of a community’s development must be traced out.  In a primitive stage of the exploitation of men by men there is slavery, an institution now a days universally condemned.  Slaves were regarded as little more than things and there was a complete exploitation of slaves by the dominant class.  The next stage in social development is the feudal system based on landholding and propriety and the domination of serfs.  The rise of a merchant middleclass betokens the beginning of the bourgeoisie, and it is this stage of social and economic development which characterizes all non-communist communities.  In this stage of development, the tool of economic domination has changed from landholding in the feudal sense to capital. Marx was substantially accurate in his foresight of the characteristics of a bourgeois dominated system of capitalist exploitation.  The final stage of development, for Marx, is the socialization of society leading to the stage of perfect communism when all capitalist and bourgeois elements have been eliminated.  This final stage may come about as a result of either of evolution or of revolution, the latter necessitating a positive and probably violent catalyst which the former does not.

Karl Marx fashioned a theory of law in strict accord with his carefully developed world outlook.  For Marx, study was a means to an end.  The end was the revolutionary transformation of society.  An understanding of the nature of social phenomena such as economics, politics and law, would ensure that the path to revolution was chartered properly.  Comprehension of the origins and nature of law and of its objective role within society had to go hand in hand with a determination to change that society.  Marx said, “up till now philosophers have merely interpreted the world, the point, however, is to change it”.  An understanding of jurisprudence demands more than a static analysis.  According to Marx, it must encompass a study of the nature of law with in a society in flux.  Marxist jurisprudence comprises three doctrines: dialectical materialism, laws of economic production, and historical materialism.

laws of economic production

Production under capitalism is regulated, according to Marx, by inexorable economic laws.  Those who own the instruments of production (the capital class) derive surplus value from the labour of those who have nothing but their labour power to sell (the proletariat).  The appropriation of surplus value is the key to an understanding of capitalism (and the legal rules which are created so as to support that system).  In the drive for profit, the capitalist class must intensify the exploitation of the proletariat.  Crises of overproduction develop and existing markets are exploited more intensively.  Society is polarised; economic crisis deepens, inmiseration of the workers intensifies.  The workers learn from their struggles and are able to attain a level of organization which enables them to confront the capitalist class and to ‘expropriate the expropriators: The capitalist system, says Marx, produces its own grave-diggers.

Historical materialism

The Marxist doctrine, founded by Karl Marx and Freidrich Engels takes as its starting point the philosophical doctrine of materialism and the idea of evolution. The doctrine of materialism, simply stated, as follows: The material principles, nature, is the primary given factor; thought and intellect are simply properties of matter; consciousness is no more than a reflection of the material world.  The idea of evolution is expressed thus: “motion is the mode of existence of matter”; there are no permanent, immutable things in the world, fixed once and for all; there are only processes and things undergoing change.  Nature and its different phenomena are therefore in perpetual evolution.  The laws of this development are not established by God, nor do they depend on human will; they are peculiar to  nature itself, discoverable and entirely comprehensible.

In 1859, Darwin, in his Origin of the Species, had put forward an explanation of the principles governing biological evolution.  Marx and Engels thought that in the social as well as in the natural sciences, it was possible in similar fashion to discover the laws ruling the development of humanity.  They believed they had discovered these laws; and thus were able to propose a scientific socialism in place of the dreams of the earlier utopian socialism.  They took up the Hegelian thesis of the mechanics of evolution (the historical dialectic), but rejected Hegel’s idealistic analysis of the causes which explain this evolution of society as based on advances made by human intellect.  They on the contrary, applied materialism to social life (historical materialism): it is matter which commands the intellect, and Reality which give birth to ideas.  Man is homofaber before he is homosapiens.  Marx said: “It is not the consciousness of men that determines their being….The material productive forces of society condition the progress of social, political and spiritual life….. For me, ideas are merely the material world transposed and translated in the mind of Man….. The anatomy of civil society must be found in political economy.”

Marxist concept of ‘class’

Marx saw history as the history of class struggles.  But he neither invented the concept of ‘class’ not does he offer much in the way of systematic analysis of it.  He rejected the theory that classes are distinguished merely by wealth and poverty.  He also rejected a definition of ‘classes in terms of their sources of revenue.  In Capital he writes that there are three large classes in a capitalist society: Wage labourers, capitalists and landowners.  His reason for distinguishing these three classes is that he regards the conflicts of interest between them as fundamentally more and historically important than conflicts within them.  He saw a process, however, whereby those land owners would be squeezed out and two classes would remain: bourgeoisie and proletariat.  These are two great hostile camps.  Marx was, of course, not describing a static society and his view was that, despite variations that then existed, the capitalists and the proletariat were essentially the only classes in a developed capitalist society.

Marxist concept of state and law

To grasp and understand the Marxist concept of State and Law, it is first necessary to be familiar with the Marxist theory of the origins and meaning of law and state as explained by Engels in his book the Origin of Family, Private Property and the State (1884). According to Engels, in the beginning there existed a classless society in which all persons enjoyed the same position with respect to the means of productions; individuals were equal and independent of each other, because the means of production were free and at the disposal of all.  They respected rules of conduct but these rules, being founded simply on habits and corresponding to current behaviour, neither imposed nor sanctioned through the use of force, were not legal rules.

Later, primitive society became socially divided through the division of labour and split into classes.  One of these classes appropriated the means of production itself, dispossessing the others which it then began to exploit.  It was at this movement in time that law and State were born.  For the Marxists, there is a close bond between these two ideas.  Law is a rule of human conduct which differs from other rules of conduct because it involves coercion, that is the intervention of the state.  The State is a social authority which, either by the threat or the use of force, assures that this rule is respected.  There is no law without a state, and there is no state without law; state and law are two different words designating the samething.

Not every human society has a state organization and law.  The state and the law are the results of a specific economic structure of society.  They are only to be found in a certain form of society at a particular stage of its evolution. Law and the State only appear when society is divided into social classes, one of which economically exploits the other or others.  In such a situation, the ruling class has recourse to law and the state in order to strengthen and perpetuate its domination.

The law is the instrument which, in the class struggle, safeguards the interests of the ruling class and maintains social inequality for its own profit.  It can be defined as that series of social norms which regulate the dominating relationship of the ruling class to the subjugated class, in those areas of this relationship which cannot be maintained without recourse to the oppression wielded by a solidly organized state.  And in itself the state is the organization of the exploiting class for the purpose of safeguarding its own class interests.

Law and the state have not always existed.  The movement at which they appeared represents a “dialectical leap” in society’s development; the greatest social revolution humanity has ever known was the transition of a society without either law or state to a society possessing these institutions. All the later changes which have resulted from advances in the methods and means of production have been merely “quantitative changes” changes of lesser importance.  They may have brought about changes in the existing law and state, but they left intact the characteristics of a class society, rooted in private ownership of the means of production.  These may have changed hands and altered in nature, but whether one considers the periods of slavery, feudalism or capitalism -there is one observably permanent phenomenon: the exploitation by the “haves” of the “have-nots”.

The history of humanity is essentially the history of class struggle: in other words, it is the incessant struggle engaged in by one class or another in order to seize the means of production and thus establish its own dictatorship.  The turning points of history are marked by the victories of the exploited class which in turns becomes the exploiting class.  The advent of a new social class represents a step forward, because it corresponds to a type of production which is more advanced and more in line with technological progress and the general aspirations of society.  Society will continue to suffer from a fundamental defect, however, so long as the means of production remain the property of only some and so long, therefore, as there are those who exploit and those who are exploited.