Marxism and Law Research Paper

Key concepts in Marx’s theory are forces and relations of production, mode of production, and social class. Forces of production are available technologies; relations of production are the social organization of production, distribution, and exchange. Together these constitute a mode of production. When the forces and relations of production are in contradiction, a revolution will give rise to a new mode of production (Marx and Engels, 1845 6, 1847, Marx 1867 1954).

Each mode of production is constituted by a particular class formation, a class being those people who stand in the same relation to the production process. Capitalism is a mode of production in which a class of workers sells their labor power for wages equivalent to their ‘use value’ (what is necessary to reproduce normal life). The additional value created by that labor in the production process is retained by the owner of the means of production, the capitalist, and realized as ‘surplus value’ in the process of exchange (Marx 1867 1954). The wage relation defines capitalism. These formulations are relevant to a theory of law because:

The sum of these relations of production constitutes the economic structure of society, the real foundation on which rises a legal and political superstructure and to which correspond definite forms of consciousness … (Marx 1857 1973, p. 501)

Subsequent Marxist theorizing has challenged, clarified, and elaborated these concepts. These discussions illuminate Marx’s and Engels’ own enigmatic statements.

2. Law and the Economic Base

Taking issue with Marx, Plamenatz (1963, pp. 279–81) argued that law is integral to relations of production, not caused by them. Collins (1982) agrees that ‘legal rules … constitute the relations of production’ ( p. 87). Nonetheless, economic determination remains valid because law ‘swallows up’ pre-existing relations. Both authors deny the priority of the wage relation as the key to capitalist relations of production yet people were paid de facto wages while master–servant relationships persisted at law. Second, in these discussions levels of analysis are confused. At a concrete level, law is integral to contracts of employment. All social relationship have political, ideological, and economic dimensions. At an abstract level, however, work may be conceived as logically prior to the law that regulates it.

Renner (1949) argues that, because law appears to be absent from the production process which it actually regulates, it empowers management while fulfilling its social function of preserving the species. This contradictory argument for both the social functionality of law and the class functionality of law’s mystifications has limited the development of Renner’s approach.

A constant theme in marxist scholarship is the inability of formal legal equality to affect substantive inequality. Engels (1884 1968) is clear that legal equality ‘on paper’ (p. 500) is undermined by class power. Pashukanis (1924 1980) explores this further. He stresses the inadequacy of explaining each law in term of its content—a tradition running from Stuchka to the conflict theorists—and also of presenting law as ‘merely’ ideology. Ideologies express a reality in a distorted way, so Pashukanis seeks to identify that material reality of which law is the expression. He distinguishes the individual legal subject, the bearer of rights, as the fundamental unit of law. While found elsewhere, this conceptualization of the legal person is foundational only in capitalist law, because goods produced for exchange (commodities), unlike use values, must be exchanged by abstractly equal subjects in order for the surplus value they contain to be realized. Edelman’s work (1979) elaborates this position.

In his analysis of criminal law, Pashukanis noted the conceptual shift from harm to guilt, and to resolution by individualized redemption transactions. Despite criticisms of such analogic extensions, the expansion of human rights law involving abstract individuation may concede the penal terrain. Balbus (1977) has developed this theme, while Kerruish (1991) uses a similar argument about the fetishization of rights and their relative impotence vis-a-vis the dispossessed. Here the fundamental concept of law, its subject, is economically determined.

3. The State and Politics

Both Engels’, argument (1884 1970) that when ‘irreconcilable antagonisms’ arise between classes, the state develops to ‘alleviate’ the conflict (p. 327) and Marx’s similar position in the Grundrisse have been regarded as ambiguous (Freeman 1994, p. 8521). Lenin’s interpretation (1917, p. 11) that the state ‘is an organ of class domination’ is clear. The apparent reconciliation of actually fundamental conflict merely ‘legalises and perpetuates the oppression’ (p. 11). Poulantzas (1968 1973) theorizes this process, aided by Althusser and Balibar’s (1968 1975) concept of overall determination, which makes possible theorization of particular and complex patterns of interdependence within and between the economic, the political, and the ideological spheres (see also Wright 1985 1997, p. 29–30). The state and law serve the political function of unifying the dominant classes and fractions (power bloc) precisely by becoming relatively autonomous from the economy. The state’s function of cohesion shapes its diverse and possibly contradictory interventions into the economy—as owner employer, as law, regulation, inspection, taxation, and so on.

Poulantzas was not alone in his concern to escape ‘monolithic’ conceptions of the state (see Cain 1977, Hirst 1977). Now Althusser’s (1971) influential formulation of ideological and repressive state apparatuses appeared too simplistic and gave place to an understanding of a play of forces within and between state agencies (Hirst 1977) in which law was both object and subject of struggle.

These conceptual advances survived powerful misinterpretation of the concept of overall determination (Thompson 1976, Anderson 1980) but ultimately foundered on their reserve clause of determination by the economic level ‘in the last instance’ (Althusser and Balibar, 1968 1975). In the end, these approaches to a marxist theory of state and law were, ironically, defeated by a word when all totalizing theory was dubbed ‘terrorism’ (Lyotard 1984, p. 64).

4. Marx’s Concept of Class

Specific class concepts based on mid-nineteenth century forms of capitalism no longer serve. Elaboration of the key terms ‘forces and relations of production’ to include reproduction helps (Althusser and Balibar 1968 1975) but there are many new found relationships which cannot as yet be theoretically spoken.

The separation between the ownership and control of capital was noted by Berle and Means (1932 1948). It has led to the dominance of finance capital over productive capital, with the implications of this shift have been under-theorized as more pension and insurance holders and private individuals become shareholders (but see Carter 1985). Second, nonmanual workers have increased as a proportion of the workforce in the developed world. Are they ‘productive’ or ‘unproductive’ workers in terms of valuecreation? Third, there are now more service workers than productive workers in the West. Fourth, feminist scholarship reveals that conventional class categories exclude unwaged care work, and make little sense of part-time work or dual incomes. Finally, the urban poor of the less developed world hold an ambiguous place: are they a reserve army without a war, or ‘lumpen’ workers despite heavy exploitation in informal economies. Marxism has been subjected to ‘the merciless laboratory of history’ (Elliott 1998).

Poulantzas (1975) addressed the first two questions, arguing for a distinction based on whether a worker fulfills the function of capital (control) or of labor (production of value). This is useful, but little used (but see Wright 1978). Moreover, the continued focus on productive labor exacerbates Marx’s original under-theorization of women and workers in the distribution, reproduction, exchange consumption, and informal sectors.

Moreover, theorization of global and international legal and state forms remains minimal (but see Wallerstein 1984, Holloway and Picciotto 1978, de Sousa Santos 1996). Existing concepts of the state are capable of elaboration to address these questions. However, concepts of contemporary economic classes and fractions which address the global and ethnic segmentation of consumption production, and which include women and the nonindustrialized poor, remain unavailable prerequizites for understanding global law.

Finally, there are political power groupings whose most significant characteristic is not class membership: people with disabilities, for example, or women concerned about male violence.

5. The Place of Law Reform in the Struggles of the Oppressed

Marxist theory develops in part because people need more than political instinct to steer by when they want to improve their situation. But the problems of achieving change in a life by changing a law have been apparent since Marx discussed the workers’ struggle for the 10 hour day (1867 1974, chap. X). In an attempt to resolve the conundrum that legal change is needed but law is not positioned to end oppression, I first followed Marx and Engels (1872 1957), seeing law as impotent (Cain 1972); then Hunt and I saw law’s power as a staging post of struggle (Cain and Hunt 1979, Hunt 1981a, 1981b). Finally I argued that ‘professionalised law’ is of defensive but not offensive value for the oppressed (Cain 1985).

Ideologists of the women’s movement have done better. Smart (1989, 1995) argues women must challenge masculinist conceptions of the legal subject as a separated, abstracted, detached, decision maker (see also Thornton 1986). Law’s discourse calls forth both masculinized and feminized subjects. Simultaneously, however, pragmatic use of law to achieve limited ends makes sense. Lacey (1999) demonstrates the possibility of constructing a collecti e legal subject. Despite similarities to Pashukanis, both arguments are postMarxist. They envisage transformation of law without transformation of productive relations, evidencing a theoretical revolution.

6. Law and Ideology

Marx (1845–6 1976, p. 600) envisaged ‘conceptive ideologists’ but failed to situate the concept theoretically. Engels, as Phillips (1980) notes, further developed Marx’s theory of ideology. He recognized that ideology, including law, ‘develops in connection with the given concept material and develops this material further’ (Engels 1886 1973, p. 618), yet he also sought to maintain an understanding of law as determined ‘in the last resort’ by the ‘material life conditions’ of those developing these apparently independent ideas.

Gramsci (1971) focused directly on this process. New ideas emerge to solve recurrent collective problems. Those who conceive them are usually organically related to a class and therefore think their new thoughts in class-congruent terms. The invention of double-entry bookkeeping is Gramsci’s example. Dominant classes invent and use real solutions; more difficult is the task of subaltern classes in promulgating organic solutions to their problems—and free floating intellectual, well-wishers can make matters worse (Gramsci 1971, pp. 1–16, 117; see also Cain 1983). Resistance and struggle about ideas remain ultimately pegged to a class base.

Althusser (1969, p. 232, 1968 1975, and 1971, p. 160) conceives ideology as the material reality which constitutes thinkers as subjects in an imaginary relationship to external (and internal) conditions of existence. Ideology is not true or false consciousness but the materiality of thought itself. This astoundingly postmodern conception relates to law via practice, the class struggle, and control of ideological state apparatuses. But ideology remains connected to forms of economic relations and class struggle through representation (Hirst 1979). However, the fatal flaw in Althusser’s theory of ideology was not determinism but the extra-ideological space reserved for science and for scientific marxism.

Foucauldian theory substituted the concept of discourse for that of ideology, clearing a connotationfree space for development. Foucault (1972) theorizes the radical autonomy of discourse knowledge in two senses. First, discourse is uncaused. It is not to be explained away by reference to authorial intentions, antecedent discourses, or any reading purporting to identify the ‘distant presence of the origin’ (1972, p. 138). Class, as a possible ‘distant presence,’ is thus ruled out. Rather discourse must be analyzed in terms of the interplay of its internal and external relations. Second, discourse is integrally powerful. It does not depend on a powerful spokesperson. Rather discourse has the power—later conceived as ‘positive power’ (Foucault 1978, pp. 92–3)—itself to constitute objects, subjects, and the relations between them, authorized spokespeople and sites of enunciation, courses of action and fields of enquiry. In relation to law, Foucault distinguishes the negative ‘sovereign’ power to repress (itself sustaining an illusion that elsewhere there exists a power-free zone) from the insidious, constitutive powers of the disciplinary discourses evidenced in moves to resocialization rather than punishment.

Here, we are past Marx, past relative autonomy, and into a world where ideology discourse has its own power, in a play of discursive and extra discursive forces (1972, pp. 4–6), constellations of power which appear and disappear from the pages of historical texts. Foucault tells how the new criminological discourses stigmatized and divided the unpropertied, how the workers’ realization and resistance came too late. Here is an often-overlooked intersection of class with power knowledge—a narrative which makes no claim to truth but which has a wondrous purchase on the (tragic) theoretical imagination (1977, p. 292).

7. Conclusion

Theory is fundamental to progressive practice. Such theorization requires elaboration of the new anology implied by Foucault, in which both social relationships and discourses are self-existent and powerful while having reciprocally constitutive effects. Theories about law in a globalized world require more refined theoretical concepts of race ethnicity, land, sex gender, and elaboration of existing concepts of economic relations. Determination, however, needs relegation to an empirical question.

Bibliography:

1. Althusser L 1971 Ideology and ideological state apparatuses. In: Althusser L (ed.) Lennin and Philosophy and Other Essays. New Left Books, London, pp. 123–73
2. Althusser L, Balibar E 1968 1975 Reading Capital. New Left Books, London
3. Anderson P 1980 Arguments Within English Socialism. Verso, London
4. Balbus I 1977 Commodity form and legal form: An essay on the ‘relative autonomy’ of the law. Law and Society Re iew 11: 571–88
5. Berle A A, Means G 1932 1968 The Modern Corporation and Pri ate Property. Harcourt Brace, New York
6. Cain M 1974 The main themes of Marx’ and Engels’ sociology of law. British Journal of Law and Society 1: 136–48
7. Cain M 1977 An ironical departure: The dilemma of contemporary policing. In: The Year Book of Social Policy in Britain, 1976. Routledge and Kegan Paul, London
8. Cain M 1983 Gramsci, the state, and the place of law. In: Sugarman D (ed.) Legality, Ideology, and the State. Academic Press, London, pp. 95–117
9. Cain M 1985 Beyond informal justice. Contemporary Crises 9(4): 335–73
10. Carter B 1985 Capitalism, Class Conflict, and the New Middle Class. Routledge and Kegan Paul, London
11. Collins H 1982 Marxism and Law. Oxford University Press, Oxford, UK
12. Edelman B 1979 Ownership of the Image. Routledge and Kegan Paul, London
13. Elliot G 1998 Perry Anderson: The Merciless Laboratory of History, University of Minnesota Press, Minneapolis, MN Engels F 1884 1970 Origin of the family, private property, and the state. In: Marx K, Engels F (eds.) Selected Works, Vol. III. Progress Publishers, Moscow, pp. 191–336
14. Engels F 1886 1973 Ludwig Feuerbach and the end of classical German philosophy. In: Marx K, Engels F (eds.) Selected Works, Vol. III. Progress Publishers, Moscow
15. Foucault M 1972 The Archaeology of Knowledge. Tavistock, London
16. Foucault M 1977 Discipline and Punish. Penguin, Harmondsworth, UK
17. Foucault M 1978 The History of Sexuality, Vol. I. Penguin, Harmondsworth, UK
18. Freeman M 1994 Lloyd’s Introduction to Jurisprudence, 6th edn. Sweet and Maxwell, London
19. Gramsci A 1971 Selections from the Prison Notebooks. Lawrence and Wishart, London
20. Hirst P 1977 Economic classes and politics. In: Hunt A (ed.) Class and Class Structure. Lawrence and Wishart, London
21. Hirst P 1979 Althusser and the theory of ideology. In: Hirst P (ed.) On Law and Ideology. Macmillan, London, pp. 40–74
22. Holloway J, Picciotto S 1978 State and Capital: A Marxist Debate. Edward Arnold, London
23. Hunt A 1981a Marxism and the analysis of law. In: Podgorecki A, Whelan J (eds.) Sociological Approaches to Law. Croom Helm, London, pp. 91–109
24. Hunt A 1981b The Politics of Law and Justice. Politics and Power 10
25. Kerruish V 1991 Jurisprudence as Ideology. Routledge, London
26. Lacey N 1998 Unspeakable Subjects. Hart, Oxford, UK
27. Lenin V I 1917 The State and Revolution Allen and Unwin, London
28. Lyotard J-F 1984 The Postmodern Condition: A Report on Knowledge. Manchester University Press, Manchester, UK
29. Marx K 1857 1973 Preface to a contribution to the critique of political economy. In: Marx K, Engels F (eds.) Selected Works, Vol. I. Progress Publishers, Moscow, pp. 501–6
30. Marx K 1867 1954 Capital, Volume I. Lawrence and Wishart, London
31. Marx K, Engels F 1845–6 1976 The German ideology. In: Marx K, Engels F (eds.) Collected Works, V. Lawrence and Wishart, London
32. Marx K, Engels F 1847 1967 The Communist Manifesto. Pelican, Harmondsworth, UK
33. Marx K, Engels F 1872 1957 The Holy Family. Lawrence and Wishart, London
34. Pashukanis E B 1924 1980 The general theory of law and Marxism. In: Beirne P, Sharlet R (eds.) Pashukanis: Selected Writings on Marxism and Law. Academic Press, London
35. Phillips P 1980 Marx and Engels on Law and Laws. Martin Robertson, Oxford, UK
36. Plamenatz J 1963 Man and Society. Longmans Green, London
37. Poulantzas N 1968 1973 Political Power and Social Classes. New Left Books, London
38. Poulantzas N 1975 Classes in Contemporary Capitalism. New Left Books, London
39. Renner K 1949 1976 The Institutions of Pri ate Law and their Social Function. Routledge and Kegan, Paul, London
40. Santos B de Sousa 1996 Towards a New Common Sense: Law, Science, and Politics in the Paradigmatic Transition. Routledge, London
41. Smart C 1989 Feminism and the Power of Law. Routledge, London
42. Smart C 1995 Law, Crime and Sexuality, Part III. Sage, London
43. Thompson E P 1978 The Po erty of Theory and Other Essays. Merlin, London
44. Thornton M 1986 Feminist jurisprudence: Illusion or reality? Australian Journal of Law and Society 3: 5–29
45. Wallerstein I 1984 The Politics of the World Economy: The States, the Mo ements, and the Ci ilisations. Cambridge University Press, Cambridge, UK
46. Wright E O 1978 Class, Crisis, and the State. New Left Books, London
47. Wright E O 1985 1997 Classes. Verso, London