MARXIST THEORY OF LAW

(Alan Hunt)

ATTY. HOSPICIO “PYKE” ICALLA LAYGO, JR

Reporter

I. OPENING PERSPECTIVE

What is Marxism?

- It is a political and economic theory primarily developed by German

philosopher and poet Karl Marx in the mid to late 19th century.
- It presupposes the dominance of the working class after a “class
struggle” with other social classes particularly the bourgeois.
- In sum, people tend to exists in a society where everybody
contributes to production and would only consume what they need.
- No more money or private property as everything will be controlled
by the state which is run by the working class/masses.

II. THE OBJECT OF THE MARXIST THEORY OF LAW

- It begs the question, what part if any, does law play in the
reproduction of the structural inequities which characterized
capitalist societies?
- Not the same as “orthodox or traditional jurisprudence.
- Does not offer alternative theory to liberal jurisprudence which is
prevalent in capitalist society.
- In fact, it is directed at controverting the conventional wisdom of
liberal legalism.
- Themes of Marxist Theory of Law are:
o Law is inescapably political or law is one form of politics.
o Law and state are closely connected; law exhibits a relative
autonomy from the state.
o Law gives effect to or mirrors or is otherwise expressive of the
prevailing economic relations.
o Law is always potentially coercive and manifests the state’s
monopoly of the means of coercion.
o The content and procedures of law of law manifests, directly or
indirectly, the interest of the dominant classes.
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o Law is ideological; it both exemplifies and provides

legitimation to the embedded values of the dominant class.
- These themes differ in depth and sophistication and should be look
into the complex dynamics of “class struggle.”
- These themes also are the anti-thesis of orthodox or traditional
jurisprudence.

III. OUTLINE OF A MARXIST THEORY OF LAW

- Marx himself did not produce a “theory of law.” It was not a focus of
his attention as he develop his thesis as to politics and economy
though he did have much to say about law that remains interesting
and relevant.
- Law is a specific form of relation. Hence, it is a variety of social
relation characterized by a set of norms that is distinct from other
types of social relations.
- Legal relations is the relations between “legal subjects” which does
not coincide with “natural subjects
o Legal subjects = persons of legal age able to pursue litigation.
Ergo, with legal personality.
o Natural subjects = all others. Example of which is a woman in
the time period of Marx with limited rights. (No right to vote,
own property, etc.)
- Legal relations results to a potential mode of regulation. Potential
only because in a Marxist society, legal relations maybe passive,
largely or wholly because the legal dimensions may not play out in
the said relations.
- As a mode of regulation, the law serves here as an ongoing set of
practices which contributes to the reproduction and transformation
of society.
- Major ingredient in this legal mode of regulation = RIGHTS-
GROUNDED DISCOURSE.
o It means that Rights and duties are distributed between legal
subjects located within social relations.
o Designed not only to embrace a wide range of attributions but
to overlap with wider normative and moral discourse.
o Provides authoritative determination of rights and duties in
litigation, meta discourse which facilitates legitimation and also
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a terrain, a contestation and change in which new or variant

claim – right are articulated and asserted
o Provides an integrated field within which all forms of social
relations can be made subject to a common discursive
apparatus.
- Law is a distributive mechanism because it varies the relative
positions and capacities of the participants in social relations.
- It also regulates the boundaries or spheres of competence of other
modes of regulations.
- According to Engles : “In a modern state, law must not only
correspond to the general economic conditions and its expression,
but must also be an internally coherent expression which does not,
owing to internal conflicts, contradict itself. “
- This explains why law is rarely the direct instrumental expression of
a dominant class and its persistent quest of coherence rather than its
realization that is significant.
- Marxism central concerns:
o Explain the relations of subordination or domination that
characterized particular historical epoch;
o Account for the persistence and reproduction of these relations;
o Identify the conditions for ending these relations and realizing
emancipated social relations.
 Marxist theory of law will necessarily be concerned to
explore the role of law in these three areas.

IV. ALTERNATIVE MARXIST APPROACHES TO LAW

- First is the Base – Superstructure Approach

o Law is assigned to a “superstructure” which “reflects” the base
or “real foundation.
o Thus the economic structure which has causal priority in
determining the character and content of the law (and all other
features of the superstructure)
o It is problematic because:
 Runs the risk of committing Marxism into “economic
determinism.”
 It gives more priority to economic base over other
dimensions of social life.
- Second is the Theory of Relative Autonomy
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o Softer determinism factor coupled with relative autonomy of

law.
o The law and other elements of the superstructure can have
causal effect in that they “react back” upon the economic base
which is still a priority but now only “ultimately.”
o The problem of this approach is that says too much and tool
little at the same time.
- Third is the Pashukanis Approach
o Developed by Soviet jurist Evgeny Pashukanis in the 1920s.
o It illustrates the connection between the legal form and the
commodity form.
o Commodity exchange and legal contract exists homogenously
and mutually dependent.
o Law is a social relation.
o Law is irredeemably bourgeois and it is distinctively associated
with capitalism.
o No post – capitalist law thus the idea of a socialist law was both
unnecessary and contradictory.
o An alternative view to this is that Marxist theory of law must be
freed from the narrow focus on commodity relations.
o Pashukasnis’ view is problematic because he reduced law to a
single and inappropriate relation.
o He also reverses Marx’s priority of production relations over
commodity relations.

V. IDEOLOGY AS LAW AND LAW AS IDEOLOGY

- Can be explained in two theses:

o Law is confined in an existing ideological field whose norms
and values associated with social institutions are continuously
asserted, debated and generally struggled over.
o Law is a major bearer of ideological messages which, because of
the general legitimacy accorded to law, served to reinforce and
legitimate the ideology which it carries;
- Ideology is a contested grid and or competing frame of reference
through which people think and act. It is the “common sense” of the
period. At that time, it is what natural, normal and right.
- It is develop through hegemony.
- Legal rules provides for the condensation of ideology.
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- Law has two important attributes as an ideological process, to wit;

o Offers a deep authoritative legitimation as to the through
complex interaction
o Confers legitimacy outright
- Legal ideology makes no claim to completeness
- But it serves two themes.
o The doubly ideological character of law
o The need for attention to the historical dynamic whereby the
role and significance of legal ideology has expanded with
modern democratic law

VI. LAW AND STATE

- State is an institutional complex whose dynamics emerges from the

tensions within and between institutions.
- Agencies operate in such a way as to create spears of autonomy.
- State is both within and outside the law.
- Law is repressive in character.

VII. ECONOMIC RELATIONS AND THE LAW

- Law is viewed as something that provides and guarantees a regime

of property. Hence advances the capitalist/liberal view.
- It peddles the interest of the capitalist view point of economy like
contracts, insurance, banking, etc.

VIII. LEGAL RELATIONS AND CLASS RELATIONS

- Two General Theses

o Aggregate effects of law in modern democratic societies to the
systematic disadvantages of the least advantaged social classes.
 Law is a tool to put the lower class in a disadvantage in
all levels.
 Law is there to protect the class controlling the society
rather than all in it.
o Content, procedures and practice of law constitute an arena of
struggle within which the relative positions and advantages of
social classes is changed over time.
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 A battle of social interests translated into rights – claims

of various classes.
- These theses are both true and one and the same.