Class And Law Research Paper

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1. Basic Marxist Assumptions

The basic assumptions in a Marxist explanation of the origin, the development, and the function of law include the following: Productive labor is the basis and thus the focus of social ascriptions, i.e., of a collectively sharped pattern of social identity (not gender, ethnicity, and the like). On a certain level of productivity a surplus can be produced. The mode of production and appropriation of a surplus changes historically. Classes evolve out of unequal property relations to the means of production. Owners and non-owners of the means of production form the dominating vs. the dominated, exploited classes. (In non-Marxist approaches, e.g., in Max Weber, classes are deﬁned not only according to their market position or possession but also according to their relation to the mode of production and appropriation; Weber 1964, p. 688.) Classes are not only structural, anonymous entities. Classes operate as collective actors vested with class consciousness (Klasse fur sich) and class interests. The interests of the economically dominating class are backed by the state as an instrument of suppression. (In contrast, Max Weber suggests that the legal order has an impact on the power order of a society (Weber 1964, p. 678), which is determined by, among other things, the economic Klassenlage, insofar as the legal order protects the free disposition of the owners of the means of production (Weber 1964, p. 682).

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At the same time, law disguises class domination behind a veil of ideological justiﬁcation. The legal ideology of the formal equality of autonomous market subjects legitimates both the economic and the political order. Instead of mere force, a system of alleged universal legitimized domination, and thus the step from might to right, is institutionalized. Therefore, not only class interests but also general (class-independent) conditions of a society are secured by state and law. By its intellectual sublimation and doctrinal systematization, law gains a relative autonomy. Law is no longer the pure expression of the economic basis or state power. There exists a feedback of legal regulations on the economic basis including the class structure.

According to the basic assumptions of Marxist historical materialism, the systematic relationship between the class basis and the legal superstructure evolves in historical stages: In ancient ‘primitive,’ ‘classless’ societies, which do not produce a surplus, there is no need for state and law. In hierarchical societies that are economically based on slavery or a feudal system, state and law play a dominant role. In the tradition of Marxist legal theory, this characterization was denied by Eugen Pasukanis (1924). According to his approach, law exists only in capitalist (market) societies with antagonistic interests of the owners of commodities. Preceding social formations are marked by lawless domination. The stage of the dictatorship of the proletariat is, according to Marx Engels and Lenin, signiﬁed by the use of law as an instrument of overt state domination, even of terror. After that, law is used as an instrument to build up and to secure a socialist society. The future of state and law in a communist society was an open question. The answers range from the notion of the withering away of law and state, to a ‘state of the whole people’ in which law still serves administrative purposes.

In the following systematic presentation the concept of law is used either in the sense of legislative acts, or the activities of the legal staﬀ, or the legally relevant activities, opinions, and beliefs of the citizens in general.

2. Class Legislation

In Marx’s base–superstructure scheme (Marx 1859, pp. 8–9), law (as an element of the superstructure) is conceived of as an expression of the economic base. In the writings of Marx and Engels, the instrumental view comes in via the notion of Ruckwirkung (feed- back) of the superstructure onto the economic base. This instrumental view was dominant from the time that the communists gained power; for example, in the writings of Stalin. In the instrumentalist view, law is conceived of as an instrument used by the ruling class(es) in order to realize a socialist order. The theoretical background of Marxist legal theory can be characterized by this oscillation between law as an expression of the given class structure and law as an instrument of class domination.

But what are the concrete mechanisms by which a link between social classes and legislation, between the dominant class(es) and the legislative majority, can be achieved (as soon as there are distinct political bodies)? What is the logic of ‘class legislation’ (Mill 1861, Chap. 10)?

On a primitive level, members of the dominating class(es) are in persona members of the legislative body. With growing diﬀerentiation ‘class representation’ becomes important: parliamentary representatives are to a large extent nominated or elected by members of the dominant class; the legislative power of the dominant class can be secured by special arrangements (e.g., Prussian Dreiklassenwahlrecht (1849–1918) by which the representatives were elected according to the amount of taxes paid by groups of voters). This becomes a problem with the introduction of equal, universal suﬀrage. Class inﬂuence then can be maintained by a combination of economic and political positions, by regulations concerning access to Members of Parliament and government, by lobbying and corruption. Alternatively, input-orientation–out- put-orientation becomes more relevant; i.e., via threats and sanctions, capitalists can use their economic power (reduction, relocation, export of jobs, and investments, ﬂight from taxation, etc.) to make the legislator issue certain regulations. The legislator has to take into account the consequences threatened by the employers. The subtlest form—often found in the critique of the bourgeois ideology of formal law—is the use of general, universal norms, the application of which conﬁrms economically privileged positions. The construct of formal equality in civil law among allegedly free autonomous persons veils substantial inequality in market positions (e.g., in the labor market between employers and workers, in the housing market between landlords and tenants). But this normative pattern is relativized by special, protective regulations in these ﬁelds, when the weaker position of one group is acknowledged and becomes legally relevant.

3. Class Justice

It is a truism that courts cannot act neutrally in a class society and in a class state. If class justice is the justice of the class state that is organized according to the interests of the dominating class, how is it organized? What mechanisms ensure that the courts will act in the interest of the ruling class? To which class do judges belong? How are the interests of the dominating class transferred into the courts?

The easiest example is, of course, where members of the economically and politically dominating class themselves have jurisdiction. The Landesherr, for example, is in charge of the administration of justice in his region. But with the professionalization of the judiciary, and a rudimentary separation of powers, the problem arises as to how the interests of the dominating class can be promoted by persons who are not themselves members of this class but rather act as class representatives. A number of factors help to promote the interests of the dominant class.

The ﬁrst factor that promotes the interests of the dominant class is socialization. Judges tend to come from a similar background (Griﬃth 1981). Family background, and especially the occupation of the father, helps to explain the class bias in the administration of justice. And the high costs of education, in particular the costs of academic legal education, make the legal professions accessible only to members of families with a high income.

The second factor promoting the interests of the dominant class is the process of professionalization. That all judges share a common academic background and training is likely to have an impact on the attitude of law students, reinforcing a status quo orientation. Furthermore, judges must adhere to a set of professional standards; if they do not, they may suﬀer political consequences, or be subjected to professional discipline. Thus, in almost every state—be it a dictatorship, an apartheid regime, or a democracy— organizational means are successfully employed to secure the conformity of the legal profession to the political regime, and to the dominant political ideology.

Illuminating examples of the operation of these mechanisms can be found in Karl Liebknecht’s critique of the class justice during the German Reich and in Prussia before the First World War: ‘If we look at where our judges come from it is obvious out of which milieu, from which point of view they regularly will decide. Naturally the judges will be recruited only from the possessing classes simply because of the high costs of education, because of the low income at the beginning of their career, by which the need for an adequate way of life, that still exists, cannot be satisﬁed.’ (Liebknecht 1910, pp. 26–7) During this period the criterion of political reliability was overtly and restrictively used by the court administration to regulate the access to the judiciary. There are also brief remarks on the English system by Max Weber (1964, p. 1049) on the recruitment of judges from the advocacy who served the capitalistic interests of their clients (For England see Griﬃth (1981) and the recent analysis of Abel (1998): the access to the judiciary is politically controlled by the Lord Chancellor and there still exist strong ﬁnancial barriers.)

Although according to Marxist theory, state and law are always ‘class state’ and ‘class law,’ in socialist countries the term ‘class justice’ was not used as a self-description of their courts, but solely in a pejorative sense against ‘bourgeois justice’, etc.

Is there still—as it was evident for Karl Liebknecht in cases where workers were involved (as an accused or, in civil cases, with an employer on the other side)—a class bias in the administration of justice? What about civil cases in which the parties come both from the same class, i.e., from the class of the owners of the means of production, or from the proletariat— and here possibly as blue-collar workers versus white-collar workers? What if conﬂicting parties avoid court litigation? And in penal cases, how do we compare legally similar cases in which the judgment diﬀers solely because of the diﬀerent class aﬃliation of the accused? The appropriate ﬁeld of study of class justice seems to be labor courts with employers and employees as parties, i.e., where class conﬂict is transformed into legal conﬂict (cf. Rottleuthner 1984).

There is substantial evidence documenting discrimination in penal courts with a high selectivity against the poor, from police arrest, through state prosecution, to disparities in sentencing and imprisonment. Assessing the extent to which capital punishment is discriminatory in the US is methodologically complicated because of the correlation of crimes rates with social status, race and even gender. Further, statistical correlations between race or gender and the law are hard to interpret because it is still an open question how these factors become operative within legal argumentation. The overrepresentation of lower class people in the penal system could be explained to a certain degree by legal standards, because there are correlations between legally relevant variables like observability of a crime, recidivism, confession, way of life, and sociologically relevant variables like (lower) class. The use of purely external variables that do not take into account legal argumentation raises several problems. The ‘background approach’ (i.e., the use of variables like father’s occupation, religion, ethnicity, party, and other group aﬃliations) in judicial research did not lead to clear results. Does there still exist a homogeneous working class culture with distinct socialization patterns? Does legal education and role expectations on the job neutralize a possible impact of the social background? What about lay judges who have almost no legal training? When a jury is selected, lawyers consider the composition of race and gender. There is strong evidence that neither the background or education of judges, nor their more recently achieved attributes like group or party aﬃliations, have an impact on the outcome of judicial decisions (particularly for labor courts; cf. Rottleuthner 1984). The focus of research into the outcomes of litigation has therefore shifted from the personality of judges to features of the parties to a court conﬂict (cf. Galanter 1974). Success in a civil court litigation can be explained by the experience of repeat players—in general bigger ﬁrms which tend to come out ahead of private one-shotters.

The focus of sociolegal research has furthermore shifted away from the courts to what happens out of court: to diﬀerent legal needs (of the rich and poor), to unequal access to courts and other legal or extralegal remedies, in general to the selectivity of legal procedures. The problem of access to courts has been adressed by Max Weber (1964, p. 719) in the case of the English system: monetary barriers for the poor lead to denial of the administration of justice.

4. Class Consciousness And Law

There are no empirical studies that contrast the attitudes of workers (or of the proletariat) to legal norms and legal institutions with those of employers (or of capitalists). Empirical research into knowledge and opinion about law uses simple indicators of social status (preferably income or occupation), but no class variables in a strict sense. Georg Lukacs (1920) dealt theoretically with the attititude of the proletariat towards legality and illegality and towards the bourgeois law and state in general. In order to establish successfully a proletarian state, the proletariat has to acquire a sober, purely tactical attitude toward law and state. The state has to be seen solely as an element of power, as an empirical entity without any normative obligatory force. Legality or illegality are not matters of principle but of utility. This instrumental attitude towards law and state can also be found among the members of Communist parties. After their experiences with bourgeois legislation and class justice, they, having gained power, used law as an instrument of suppression and of strengthening the socialist state. The doctrine of the withering away of law and state was discarded; and law was not understood as a limit on state power.

5. Abiding Marxian Concepts

The replacement of the Marxian concept of class with constructs like status and milieu, and with indicators such as income, education, and occupation can itself be explained by substantial social changes. Labor is no longer the focus of social ascriptions. The forms of property or ownership (of the means of production) have changed and have become objectively blurred by the development of big companies. Other forms of social inequality became important like gender, race, ethnicity, nationality, age, etc. Of course, hierarchical stratiﬁcation still exists: the haves and have-nots (the distinction between Besitzenden and the Besitzlosen constituted the Klassenlage inWeber 1964, p.679), rich and poor, thelegally included and excluded, that share or do not share the beneﬁts and compensations of the welfare state, the politically dominating and dominated, etc. Instead of property, the notion of access becomes more important. Scholars are interested in the access to the means of production, but also the access to money, to the labor market, to information, knowledge, education (cultural capital), access to medical care, to other social beneﬁts and rewards, to legal services and remedies, to leisure time options, to political power, etc. It is important to look at correlations and congruence between these varieties of access. There are no longer collectively conscious actors like classes. Some authors deny the existence of collectivities altogether under the heading of individualization; others speak of social movements (Eder 1993). Finally, the role of law has changed. Law is no longer conceived of as a general structure of society, whether based on social contractual consensus or on class domination or an anonymous economic base. Law serves as a political instrument, among others, used in order to achieve certain goals. Law, in particular welfare and labor law, is applied in order to compensate for the shortcomings of formal equality. Law is constitutive of state and social activities; and law can work to limit political power.

Basic Marxian concepts are used today only metaphorically. Everything, including culture and law, becomes a matter of production. The notion of capital is converted into social capital and cultural capital (Bourdieu 1986). Class becomes an empty shell signifying every form of inequality. Lenski (1966), for example, speaks of various class systems according to diﬀerent principles of stratiﬁcation. There is not only a ‘power class,’ but also a ‘sexual’ class system, (on class in general, see Milner 1999). Marxist legal theory could be understood as an economic analysis of law. But what today is labelled as ‘economic analysis of law,’ the individualistic, utilitarian approach of the Chicago school, would have become the target of Marx’ sarcasm.

Class has been used as an explanatory variable, namely as a background variable, in order to explain the behavior of legislators or judges, or as a variable attributed to the accused or to the parties involved in a legal conﬂict. But it has regularly been used in a nonMarxian sense; in empirical research, indicators other than the property relationship to the means of production are often used. Thus the concept of class has been dissolved into notions like status, stratum, milieu, etc., and indicators like income, occupation, and level of education have taken the place of the theoretical construct of class. In sociology, as in sociolegal studies, class has become a vague notion relevant to social stratiﬁcation or to social movements.

The critical heritage implied in analyses of class legislation, class justice, and legal class consciousness lies in the disclosure of inequality that is veiled behind formally equal legal rules. Marxian and Marxist analysis like Critical Legal Studies teach us about the ‘dialectic’ of formal and material equality. Formal equality in law means that there are legal rules framed in neutral language with no overt discrimination. But the application of these rules has a discriminatory impact on those who do not, in practice, have the options that are imputed to allegedly autonomous persons. The strategy of argumentation is fundamental for the discourse of inequality in general insofar as it holds not only for class discrimination but also for unequal treatment in the cases of gender, race, color, ethnicity, nationality, etc. Also the attempts to overcome the contradiction between formal and material inequality, legally and or politically, are similar in the various domains. Should one adopt compensatory legal measures, such as protective regulations? Should one opt for positive discrimination? Or should one dispose of law generally because of its class character as Marx did in his critique of the Gotha program: law is by necessity a law of inequality (Recht der Ungleichheit) that cannot cope with the variety of individuals.

A negative heritage of the Marxist juxtaposition of class and law lies in the conception of law either as the expression of a basic anonymous class structure or as an instrument of the dominant class(es) as conscious actors. What has been systematically neglected is the ubiquitous constitutive role of law (already in the fundamental property relationships) and the functioning of law as a possible limit to political power; in short, the intrinsic value of legal normativity for a social order.

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