The Marxist theory of law

This is economic jurisprudence — the branch that arises where jurisprudence meets economics, both being sciences that aim to regulate the lives of people and to develop society. Karl Marx was the pioneer.

Marx and Friedrich Engels founded the greatest social and political movement, which began in the nineteenth century and flourished in the twentieth as a political philosophy in Eastern Europe, influenced all the decolonised colonies of the world, and is practised in the political philosophy of China. Marx's originality of thought lies in the fact that he synthesised almost the entire philosophical thought from Aristotle to Hegel — and the dialectic he took from Hegel, converting Hegel's ideal dialectism into material dialectism.

Law has no independent existence. Marx's view of State and law was co-terminous with his understanding of society and the social process. Law seems to be nothing more than a function of economy, without any independent existence. Everything else follows from that sentence.

The State. Marx condemned and rejected the State and money as bourgeois concepts. The State in a capitalist society is a superstructure which organises and upholds class oppression; its bureaucracy and executive exist for managing the common class and the struggle waged within society.

The classes. Marx classified society into the capitalists, the wage labourers and the landlords. The conflict between them must eventually be resolved, and the resolution takes the shape of a proletarian revolution.

The sequence after the revolution, which is the list an examiner looks for:

1. The proletarian dictatorship, essential to convert capitalist modes of production into proletarian modes.
2. Nationalisation of property and of all the capitalist modes of production.
3. Socialism — property being in common ownership, society at large is responsible for the production and distribution of goods.

The revolution seizes the power of the State and transforms the means of production, in the first instance, into State property. The earlier State — an instrument of exploitation and a representative of class antagonism — is replaced by a State truly representative of society as a whole; and taking possession of the means of production in the name of society is at the same time the last independent act of a State. Thereafter the interference of the State in social relations becomes superfluous in one sphere after another and then ceases of itself: the government of persons is replaced by the administration of things.

Distribution. With goods produced in common ownership, distribution follows the formula: from each according to his ability, to each according to his needs. Inequalities remain, so distribution remains necessary. In the transitional stage the labourer who has worked fixed hours receives a certificate from society that he has furnished such an amount of labour, and with it draws from the social stock of means of consumption as much as costs the same amount of labour.

The higher stage, set out in the Critique of the Gotha Programme of 1875 and in the Communist Manifesto: the concept of power and labour vanishes; the enslaving subordination of the individual to the division of labour, and the antithesis between mental and physical labour, have vanished; labour has become not only a means of life but life's prime want; the productive forces have increased with the all-round development of the individual, and all the springs of cooperative wealth flow more abundantly.

Law in the proletarian State. Law is not based on will; but once the bourgeois State is overthrown, the proletarian State comes into existence, representative of the social will of all the classes. The nexus between the capitalist State and the safeguarding of private property is replaced by a proletarian State which has nationalised all private property. Note the qualification, because it is the one students forget: State and statecraft remain important and integral in the proletarian society.

E. Pashukanis tried to remove the gloss put on law and Marxism by the Marxist State as it actually operated, believing that the proletarian law practised in the Soviet Union needed alternative general concepts to reinforce Marxist theory. His proposition: power is collective will, and the rule of law is realised in bourgeois society to the extent that that society represents a market.

Karl Renner used Marxist sociology to develop a theory of law out of the institutions of private law and their social functions. Socialists and Marxists have failed to understand that a new society has always been pre-formed in the womb of the old, and that this is equally true of law; the process of change from one order to another is automatic. Renner concedes that the concept of property has not remained as Marx described it: property, in socialism and in capitalism alike, has ceased to be simply an instrument of exploitation, and the natural forces of change have put it under various restrictions in favour of tenants, employees and consumers. But the power of property remains, whatever the political character of the State may be.

Feminist jurisprudence is generally opposed to the political and legal theories of Marxism. The thesis that the disappearance of classes will bring true equality between the sexes is rejected as simplistic and, judged by the history of the twentieth century, unsound. Lenin's account, in Women and Society of 1912, was that as long as women are engaged in housework their position remains restricted, and that complete emancipation requires social economy and the participation of women in general productive labour. The feminist reply is that this makes the position of women a by-product of class, which the century's experience does not bear out.

• The set-piece — the three classes, the three stages, the withering away of the State, and the two distributive formulae.
• The comparison with Duguit. Both deny that the State stands above society, and both subordinate rights to a social function. But Duguit's engine is interdependence and Pound's is interest; Marx's is class conflict, and only Marx says the State will disappear.
• The trap. Do not write that Marxism has no place for the State. It has three: the bourgeois State as superstructure, the proletarian State that nationalises property, and the eventual disappearance of State interference — and Renner's point is that even so the power of property survives the political change.