CHAPTER 1

Introduction
Marxism is a theory which is unique in itself due to the fact that no other social thought has
been represented in as many ways by various states and political parties as Marxism has been.
Marx viewed the human society as a system albeit an unstable system. He focused on the
interrelationship between the parts of a system. The base or the primary system was the
economic system and the other systems namely law, religion, ethics were what he called the
“superstructure”. His theory of law has been termed as the economic theory of law and state
due to the amount of emphasis Marx placed on economic modes prevalent in a system.1

Marx was a materialist. However, he was very much against the materialistic conception of the
world during the Eighteenth century as the conception termed the human society as mechanical
(like a machine) leaving no scope for development or even considering it.

Marx and Hegel

The notion of development on which Marx laid a lot of emphasis was that of Hegel. Hegel
believed history to be a process wherein the ideal or rather the absolute tended to unfold itself
progressively from earlier to later periods. For him, the notion of the dialectic was at centre of
it. Plato explained the term by stating that obstructions or rather contradictions were important
in order to arrive at truth. For Hegel, the notion of the dialectic or rather the “power of the
negative” was present everywhere. A tension between the present set of affairs and its
transitional period was necessary in order to progress towards the absolute truth. Hegelian
notions were important as they consequentially depicted that the society was full of
contradictions, thereby claiming that contradictions were required in order to progress. By
stating that the notion of the dialectic was present everywhere, Hegel claimed that a phenomena
could not be studied in isolation but rather in its motion and development. This suited Marx as
he could claim that Capitalism could thus be a transient phase in human development and
alienation being a consequence of capitalism would not be an isolated concept.2

Marx owes a lot both the Hegel’s dialectic but also to the secularisation of Christian
eschatology. Marxism was seen as an empirical science which would castigate the moral

1
Wayne Morrisson, Jurisprudence: from the Greeks to the Post Modernism, (Cavendish Publishing Limited),
2000
2
Ibid
backwardness of the capitalist society. It promised a new world which would be free yet
fulfilling; wherein man would realise his destiny as a species as he realised his absolute, yet
concrete freedom- an uncorrupted and harmonious society.

While the thesis of idealism (Hegel) was important for Marx, the change brought forth by
Feuerbach contributed in his becoming a critique of Hegel. According to Feuerbach, religion
was a response to the material conditions of life. He emphasised on history being the study of
man striving to realise his possibilities in the actual, material condition in which he was born.
An appeal to God would be an appeal concerning his material possibilities outside their worldly
domain. This amounted to an exercise in alienation, thereby claiming that man and not God
would be the focal point of existence and history. This ought to lead to focus being shifted to
the study of man’s entire material situation and the betterment of it. Feuerbach’s emphasis on
material conditions of life thus made Marx question the notion of ideals.

Marx became a staunch critique of the liberals such as Hume, Smith and Bentham because they
assumed and accepted that capitalism was a reflection of the underlying natural law. Marx was
concerned with the analysis of seeking out the logic of social change. “Bourgeois
jurisprudence” as he labelled it, obscured the reality of the class conflict and strove to create
the impression of the legal order as one which was autonomous and concerned with the seeking
of justice only.3 Under capitalism, the economic structure of unequal and exploitative economic
relations, contained the interests of the dominant class though in an indirect manner because if
law was an expression clearly and directly an expression of the economic interest of the
dominant classes it would lose all respect. Thus it is hidden under the realm of justice. Law is
seen as an ideology of rights, of progress, of social interest to hide the reality of domination.
Thus the secret to domination through law is to hide the domination.4

3
Lectures on
Jurisprudence,<http://www2.warwick.ac.uk/fac/soc/sociology/staff/emeritus/robertfine/home/teachingmate
rial/humanrights/lecturepodcast/marxs_critique_of_rights.pdf> accessed 23 November 2015.
4
M.D. A Freeman, Introduction to Jurisprudence, (Sweet and Maxwell), 2010
 CHAPTER 2
Marx and Law

Marx’s views of law have not been set out in any specific treatise and have been pierced
together from his various writings. Marx does not define law as such. Marx and Engels rather
focus on the way law is created. They are interested in ideology and law is a part or rather a
manifestation of it. Marx cannot fail to be interested in law as the capitalist society is
characterised by private property and law is a more of a collection of legal rights relating to the
use and disposition of things. Capital in such a society is seen as private property and therefore
allows the owner to buy as well as exploit labour of another to create surplus value. Law claims
to be neutral in providing an equal platform but doesn’t.

In a capitalist liberal society, individuals possess rights granted to them by the legal order.
These rights allow them to achieve their ends as well as making them fashion the social space
around them as they see fit. Due to this, the very idea of public space becomes problematic and
commodified into spheres of production, exchange and consumption. Such rights are called
negative liberties i.e. rights which provide for freedom from the interference of others rather
than a real social purpose. Such rights are of very little importance because for most of the
masses who have only their bodies and no such property, these rights have no value at all.
These rights obscure social reality which is primarily based on class positions and relations.5

Law as a constitutive regulation

Capitalism is based on the presumption that a workman sells his labour power as a commodity.
Capitalism rests on specific class relations and interests, it requires contracts and subjectivity.
Subjectivity is well provided for by law as it sees a person not as a unit of the social whole but
as an individual. Law helps in providing for a various pre contractual norms thereby laying out

5
Brian Brix, Jurisprudence: Theory and Context, 2009
a proper field for the contract to operate. Law constitutes the modern subject and does so in
two ways:

 Destructive: The pre modern social harmony and unity is broken down. Bourgeois
thinkers call such a phenomenon as the individual being free, or the progressive
overcoming of social ties and bonds which constrained an individual in social
ignorance. The individual is not only removed from his social ties but even from
various physical entities such as his land. Law is used in removing people from their
lands, destroying feudal ties and everything is done in consonance with law or the
prevailing legal enactments which justify such means. For eg. In England the law the
instrument for the theft of people’s land. Laws had penalised vagrancy as it was seen
as the primary contributor to the rise of crime in England. Furthermore working hours
were extended and wages were regulated. While claiming to civilise the non-modern
world, this so called modern world ushered in an era of indiscriminate looting. The
power of the state was used in order to covert the society from a feudal to capitalist one
taking exploitation to the global stage.
 Constitutive: The decomposition of traditional structures lead to the emergence of the
isolated individual inclusive of both the worker as well as the consumer. This leads to
the emergence of the juridical individual. This is seen as important under capitalism
because a juridical individual is seen as necessary for the very act of exchange. The
individual being both a worker and a consumer becomes necessary for the sustenance
of the system. Exchange requires subjects as exchangers. For Marx, the attributes of
the juridical person are those a person engaged in exchange (he is a consumer as well
as worker). Subjectivity is seen as the basic unit of capitalism which created by laws
which reflect capitalist relations and make them possible.6

Neutrality of law
Marx has never been concerned with how law operates. He does not even question the existence
of law because he believes in the existence of law. For him, importance is accorded to the role
which law plays in society. Marx is concerned with the myth concerning the neutrality of law

6
Supra at note 8
and the establishment of such a principle over the general masses who might consider it as a
tool for exploitation.

Marx viewed the central role of law to be a tool of power under a capitalist society. The power
should be such that it fulfils two targets;

 Protection of the vested economic interests concerning property

 Creating laws which create a mystification over the populace in order to make them
respect law

Marx believed that the question of law was a historical one prevalent and prevalent within the
ambit of class struggle. Therefore the understanding of law requires giving importance to the
dynamics of class struggle. From such an analysis results an understanding as to the
importance of the superstructure and the manner in which in which it builds up a system having
the ability to exploit workers. Such a system requires the masses to be fooled in order to avoid
questions concerning the role of law and focusing on the so called neutrality of law. The
workers are concerned with wages rather than the checking the legitimacy of such a system of
accumulation of profits and alienation. Most off the countries emphasized on the neutrality of
law by stating the example of people making contracts and the fact that they can enter into
contracts as being equal. Marx argued that there was only formal and not substantive equality
between a contract being made between a company and a wage earner. They would be on
severe unequal footings as for the wage earner it would be a necessity of drastic proportions as
compared to that of a company.

Marx and Morality

The notion of morality for Marx was concerned with the analysis of capitalism and
communism. Marx’s works provides for a lot of distaste against the bourgeois capitalist society
and an endorsement of a future communist state. However the problem arises due to the fact
that this hatred, antipathy and endorsement is not at all clear. Marx does not claim capitalism
to be unjust. Nor does he state communism to be perfect form of society. Furthermore not only
does try to distance himself from those who are supporters of justice, he also tries to avoid
moral commentaries on his work which can be seen as puzzling due to the fact that Marx has
been associated primarily with a huge amount of distaste for capitalism.

Marx detested capitalism due to the fact that the profit derived in this system is the result of the
worker’s exploitation. There is no mutual benefit and harmony but rather a situation wherein
there is aggressive extraction of profit by one class. However the paradox arises when Marx
does not conclude such a system to be “unjust” and goes on to say in Capital that such a system
of exchange could not be claimed to “be an injustice.” While Marx may not have seen
capitalism as unjust, he certainly thought of it as an inadequate system for the human beings to
live and thrive in. According to him, a worker under capitalism finds his work to be a
torment and suffers a loss of freedom, poverty and overwork.7 People are not able to or
rather lose the ability to humanly relate to one another. Therefore while Marx does not
explicitly criticise capitalism, such notions prove that Marx does not approve of capitalism as
a just and moral system. However this claim also has his drawbacks because Marx does not
criticise capitalism within the ambit of moral philosophy. The researcher claims this can be
justified by stating that

 Criticising the whole system may seem a bit farfetched. Certain aspects need to be
focused upon.
 While capitalism is a system having its vices, its advantages and benefits to the society
cannot not be ignored.
 Communism is not possible without capitalism as capitalism has to be destroyed and
transcended in order to reach communism and such a transcendence is difficult to be
conveyed though moral philosophy.

An open endorsement to morality too was not possible because for Marx morality could have
been seen as a regressive step. Marx believed in the fact that human emancipation could be
achieved through only historical and social forces and not through morality. Thus endorsement
of morality would have been contrary to his own claim.

Marx and Rights

Marx developed the concept of human rights by stating that humans were concerned with their
own self-interest. This was further developed in the work Capital wherein capitalist relations
of production were seen as being co extensive with the concept of human rights. Human rights
provided mutual benefits for both. It provided the legal and moral framework for the exchange
of labour power for wages. Capitalism on the other hand provided for development of self

7
Supra at note 8
interest and individualism which were deemed to be necessary for the existence of human
rights.8

Marx dealt with human rights for the first time when critiquing Bauer regarding his views in
the article “On the Jewish Question”.

The major focus of Marx in this article was regarding the right concerning religion. The issue
was related to the political emancipation of Jews in Prussia as had been done in France. Bauer
had argued for emancipation to be provided only if the Jews were to give away their religion.
Marx criticised Bauer by stating that he did not what political emancipation meant. Political
emancipation under the Declaration would mean the state emancipating itself from religion or
more importantly state religion. Marx viewed the rights as being part of the superstructure
because they were intimately linked to the economic mode of production or capitalism and
were agreeable with it.

Marx claimed the Declaration to be part of a Bourgeois ideology because liberal rights were
based on the requisite that individuals required protection from each other. Due to such a
notion, such rights were viewed as rights of separation concerned with protecting individuals
from threats. The problem with such a view was that it was against the possibility of true
freedom being achieved not through isolation but rather through social interactions between
people. Freedom from religion presupposes a freedom of religion and the provision of the rights
of man as well as citizen were a progressive step. This emphasis on rights by Marx was because
of his hostility to the claim of Bauer’ radicalism; radicalism which denied the Jews as well the
common populace the rights regarding man and citizen.

It is in this early formulation that Marx develops the notion of human rights as being concerned
with the individuality, asocial, self-interest of individuals.

This theme is further developed in his later work, Capital, where the domain of capitalist
relations of production is claimed as co-extensive with the domain of human rights. They
provide a mutual advantage to each other: human rights provide the moral and legal
(institutional) framework for the “fair” exchange of labour power for wages. And the capitalist
mode of production generates and compels the individualism and self-interest essential for the
allure of individual human rights. The notions regarding rights are developed through the
exchange of commodities between free and equal property owners who exchange it through a

8
Supra at note 4
voluntary contract in order to further their self-interest. During such an exchange various rights
concerning property, freedom as well as equality come into play;

Freedom concerning the free will to exchange commodities

Equality concerning the exchange of commodities

Property as disposal is done of those things which one owns.

However the major drawback concerning such an argument is that it does not take into account
situations where people are compelled to exchange. Marx focus on the capitalist society
wherein on the surface there is formal equality but actually there is massive appropriation of
the property(namely labour power) of one class by another.

This theory known as the social theory of right claims that the social relations which gave rise
to the value form to the product of human labour had also contributed in creating rights amongst
the producers themselves.
 CHAPTER 3
Criticism
Marxian view of law is seen as over simplified Even if law is believed to be exploiting the
workers and promoting the interests of the Bourgeois, law can several other important functions
also. Marxists grudgingly accept this. While the law may be promoting interests of the ruling
class, it also helps in putting restrains on the ruling class as well.

The researcher believes that the emphasis provided on individuality by the liberals is of utmost
importance and Marxism may lead to coercion and its subsequent violation.