Introduction
It is important to stress that Marx did not produce anything that could be called a “theory of law.” Law was never a sustained object of Marx’s attention although he did have much to say about law that remains interesting and relevant. But what he discussed give an overwhelming understanding towards the legal relationships in context with the social relations. The broad framework for a Marxist philosophy of law has indeed been offered in this article. There will always be concerns that have been overlooked. Most notably, essentially nothing has been said about what Marx said about law, or about the history of Marxist legal writing and debate. Another missing is the connection between Marxist legal theory and traditional jurisprudence.
In the present article an attempt is made to give readers an insight of Marxism’s relation with the core of civil society i.e., Law. In its first part study carries an outline for legal Marxism. In addition to that in the second part and alternative approach of Marxism is provided which shows that importance of Commodity relation which was lacking in Marx’s focus towards production relations. Then the element of ideology in law is discussed providing readers with idea of Ideology as law and law as ideology.
Marxism in Law with its Outline
The following is an outline of Marxism in law that aimed at developing a coherent comprehensive framework from the various variants of Marxist theory of law’s primary issues. Marxism is a meticulously and genuinely sociological philosophy, because its general focus is on interpersonal relationships/socialization. Law is a type of social relationship. law not being a “thing,” cannot be reduced to a group of institutions. Better can be understood by following paragraphs of Marxist theory:
“Individuals do not make up society. but it expresses the sum of interrelationships, the relationships in which these people exist… Slavery and citizenship are social qualities. Humans A and B have a relationship. As such, human being A is not a slave. In and through society, he is a slave.”[1]
Legal ties: A paramount sort of social relation
Legal relations, as per the Marxism, are first and paramount sort of social relation distinguished from other aspects of social relations. Relationships within “legal subjects” are quite a sort of legal relationship. Since the legal character differs from the natural person, women were either not legal subjects or were bound by a legal status that imposed obligations while affording little rights until relatively. It’s worth noting that there is still a strong link between “legal subject” and “citizen,” which is not homogeneous nor diametrically conflicting.
An adult person recognised by law as the possessor of rights is perhaps the most basic example of the legal subject. Almost all institutions have legal uniqueness, often known as “legal personality.” It is indeed worth noting the large and diverse range of legal categories into which individuals and groups are summoned; accused, eyewitnesses, and a slew of other legal statuses are all summoned. As seen in the example of an establishment of a company, wherein law is operational, legal dialectic might become indispensable of a social relation. Legal interpellation, in plenty of other cases, need not build a social relationship; seemingly, it alters the parameters, constraints, and boundaries wherein that relationship is stayed out and negotiated.
A legal relationship inherently yields a possible “mode of regulation”. Law offers a myriad ways to regulate social relationships. This is plainly obvious in the learned patterns of branches of law, as wit, penal code incorporates different authorities (such as police) and imposes different consequences (such as jail) than private law (such as litigation and damages). The entire notion of a mode of regulation makes a reference to law as a continuous set of behaviours that make a significant assistance to the preservation and alteration of social relations.
Both rights and obligations take into account a diverse range sorts of cognitions, that are fundamental because they not only create a relatively coherent legal discourse that can manage a number of different social connections, but also correspond with extensive normative and moral rhetoric. This nexus of legally and morally generated rights provides opportunity to leapfrog for influential rights/duties judgements in court, a zeitgeist that serves as both a source of legitimacy and a battleground for debate, and the identification and proclamation of new or different rights and claims.
A unified space is created with the right based discourse, probably the most significance of legal relations, whereby all typologies relations have been subjected to a shared argumentative machinery. this not make the discussion of human rightscan be completely consistent or devoid of civil unrest or conflicts. The most substantial achievements of the “criticallegal studies” school has been to draw attention to the underlying inconsistencies and contradictions in the rights rhetoric.[2]
Law and the legal process posses potential to shift the spatial correlation of legal subjects inside of social relationships; within that specific context, law is a social exchange mechanism.
The crucial thing is to illustrate the importance of legal doctrine uniformity. In a note Engels spelled out the core problem in the words that, “in a modern state, law must not only reflect and reflect broad economic realities, but it must also be an internally consistent expression that does not contradict itself due to internal conflicts.”[3]
The central concerns of Marxism are to (1) demonstrate the subservience/supremacy relations (2) explanation towards the tenacity and procreation of these relations, and (3) specify the barriers for wrapping up these relations and realising impoverished social relations.[4]
Alternative Approach to Above Legal Marxism
The first one is based on Marx’s imagery of base and superstructure, which characterises among “the economic structure of society,” that further constitute the core, on which grew a socioeconomic and regulatory superstructure, with which directly relate distinct dimensions of social consciousness.[5] The “superstructure,” that reflects the core or “economic structure,” is allocated to law. As a result, the financial sector governs and may have temporal precedence in defining the nature and content of the law.
In a myriad of areas, the base-superstructure idea is flawed. The concept of base—superstructure is a paradigm that aims to improve our view of social relationships by incorporating imagery gleaned from conceiving of society as a public works project. The symbolism of the base-superstructure bears the threat of reducing Marxism to “economic determinism.” The criticism is that it posits a causative law, not a scientific one, that affirms the socioeconomic base’s temporal merit above other spheres of social life.[6] As a result, the socioeconomic bedrock is characterized as shaping the borders for said diverse components of the superstructure. Such inkling of predictability seems to be more appealing from a conceptual point of view as it does not negate the causative interlinkages between various aspects of social life.
Both Marx and Engels gets close to the above gentler variant of “determination” on note. Engels’ version is by far the most well-known.[7] This gentler/softer variant of determinism has piqued the interest of several Marxism legal writers. Its beauty has been that it continues to keep a perception of said economic order’s causative gravity all the while delivering an encouragement to investigate the fascinating detail of law.
Alongside the undeniable appeal of “soft determinism” and “relative autonomy,” same is not a viable starting point for legal Marxism. At it’s most generic definition, the criticism is simultaneously too much and too little. Too much in sense that instead of just giving a formal starting point, it forces a conclusion, precisely, that economics is decisive. To o little as it doesn’t explain how this ultimate and lengthy determinism is generated.[8]
Early Soviet jurist, for example Evgimy Pashukanis, used a radically different point of view for legal Marxism by producing what is still the most complete Marxist comprehensible input of law in the 1920s. [9] Pashukanis thesis on Marx’s theory is inscribed in Volume I of Capital, deploying examination of the concept of “commodity.”[10] This theory is well famous as ‘commodity form’ due to his willingness to understand the profound connection between the legal form and the cornmodity form.[11] The ultimate focus had been that the legal relationship amongst persons stands merely the inverse of something like the relationship between labour outputs that became commodities[12] Pashukanis saw the agreement as the legal representation of capitalism’s main interaction. He viewed the terms “commodity trade” and “legal contract” as synonymous and mutually dependent.
The renowned essay on commodities was a way for Marx to embrace what he had seen as perhaps the most paramount relationships reified of capitalism. As a result, the benchmark criticism of Marxism by Pashukanis seems to be that he halts Marx’s preference of production relations over cornmodity relations, which was his ground of analysis.
The alternate Marxist viewpoint is that socialist would entail the emergence of new sorts of connections, which would need the creation of new legal forms. For illustration, socialism is inclined to put a greater emphasis on a variety of semi-autonomous groups that actually function with a high degree of self-regulation while deriving their resources from public sources, those entities would necessitate the creation of new property aspects. To regain Pashukanis’s comprehensive relational orientation, Marxist theory of law must be liberated from its tight perspective of production relations to commodity relations.
The Element of Ideology in Law
Law is ideological in two ways.[13] Ideologically produced and as a carrier of ideology. It can all be stated in two ways:
- Law is made inside of an intellectual framework wherein the codes of conduct that govern social relations are constantly affirmed and disputed. And one have lot of trouble with that.
- The law is a prominent messenger of ideological impulses, which serve to strengthen and legitimise the ideology that it embodies due to the broad legitimacy afforded to legislation.[14]
Ideology is not the same as deception or misrecognition. Not even a straightforward declaration or “refusal” of commercial interests. Ideology, is from the other hand, is a hotly disputed matrix or conflicting understanding of the situation that people use to think and behave. The prevailing ideology seems to be the main influencer, which shapes the “cornmon sense” and so does seem natural, fair, and absolutely right. Almost any hegemonic ideology’s main goal is to bind the social configuration all under the command structure of the privileged majority well defined as ‘process hegemony’ by Gramsci.[15]
The content of legal norms is an excellent example of ideology condensing. As an intellectual process, law has two distinct characteristics. First, it provides a deep authoritarian credibility through a complicated relationship in which it shows both a broad legitimacy and a deep authoritarian legitimacy. But at the other end, it is distinct from the meaningful content of it’s own constituent regulations and confers credibility. Modern democratic law entails a shift in the nature of legitimacy: a tendency toward impersonal, formallegitimization of human relationships, in which “law” is increasingly associated with “reason.” Law is increasingly being used to legitimise social order merely since it is law, and as such, it offers the basis for citizens’ responsibilities of adherence. Law is also considered as the manifestation of the people-nation link among citizep and country. Law both establishes and demonstrates the sovereignty of a state.
The preceding discussion of legitimate ideology does not claim to be exhaustive; it does, even so, serve to establish two central concepts: first, the dual ideological nature of law; and foremost, the importance of paying attention to the biblical dynamic in which legal institution’s role and significance have grown in tandem with modern democratic law.[16]
Conclusion
By emphasising the embeddedness or connection of law with social, cultural, and economic interactions, Marxism can give an even more adjunct to jurisprudence. It is a prevalent cause of opposition to the prevailing trend in devout jurisprudence to see law as disjointed, if not independent.
The surge in popularity of socialism necessarily involves the creation of a legal framework that promotes and ensures the circumstances of political and economic democracy, allows political participation, and impedes bureaucracy and state authority, rather than the slowly deteriorating of law. The unspoken assumption is that a Marxist course of action to law will indeed be engaged with both jurisprudential issues and the significant application of organization’s strategic goals to optimising political strategies for civil society that exemplify the Marxist political and ethical pledge to the down trodden.
References:
[1] K. Marx, Grundrisse: Introduction to the Critique DI Political Economy 265 (Harmondsworth: Penguin 1973).
[2] A. Hutchinson, Critical Legal Studíes (Rowman & Littlefield 1989).
[3] M. Cain & A. Bunt,: Marx and Engels on Law (London: Academic Press 1979).
[4] Alan Hunt, Marxist theory of law, WordPress https://legalform.files.wordpress.com/2017/08/hunt-marxist-theory-of-law.pdf
[5] K. Marx, Capital 21 (London: Lawrence & Wishart 1970).
[6] R. Williams, Marxism and Literature 83-89 (Oxford University Press 1977).
[7] K. Marx and F. Engels, Marx-Engels Selected Correspondence 394-395 (Moscow: Progress 1975).
[8] Muhammad Munir, Marxian Theories of Law: An Analysis, ResearchGate https://www.researchgate.net/publication/256051635_Marxian_Theories_of_Law_An_Analysis.
[9] P. Beirne, and R. Sharlet, Pashukanis: selected writings on Marxism and law (London: Academic Press 1980)
[10] Supra note 5.
[11] E. Pashukanis, Law and Marxism (1978).
[12] Id. at 85.
[13] Terry E. Boswell et. Al., Edgar V. Kiser & Kathryn A. Baker, Recent Developments in Marxist Theories of Ideology, Swetsfulltext https://library.fes.de/libalt/journals/swetsfulltext/10590673.pdf.
[14] Legalbites, https://www.legalbites.in/marxism-and-the-element-of-ideology-in-law/ (last visited Sept. 1, 2021).
[15] A. Gramsci, Selections Irom the Prison Notebooks of Antonio Gramsci (1971).
[16] C. Sumner, Reading Ideologies: an investigation into the Marxist theory olideology and law (London: Academic Press 1979).
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