What Do Marx and Marxists Say on Law and Justice - Literature review Example

Marx and Marxists on Law and Justice What do Marx and other Marxists say on law and justice? Can legal theorists, legal researchers, and society derive something good from them? What can society find useful in their ideas on law and justice? Marx is controversial man in history. While it is true that from Marx originated communism, communist ideals, and the birth of regimes considered anti-theses of democracy, it is also from Marx that a mainstream economic view, Keynesian economics, finds some of its roots for its advocacy of state intervention in the economy even if Keynesian economics is diametrically opposed to Marxism. Unlike Marx, however, Keynes had chosen to "salvage capitalism, not to bury it" (Spiegel, 1974, p. 599). According to economic historians Ekelund and Hebert (1997, p. 246), Marxs influence on economists "has reached beyond a small group of economists" but also extended to figures such as Paul Sweezy, Maurice Dobb, Paul Baran, and Ernest Mandel. Marxist ideas have also influenced sociology, philosophy, political science, and other social science disciplines. Other professions such as sociology with its conflict perspective in the study of social processes also benefited from Marx. Similarly, the legal profession can also find useful ideas from Marx worth reflecting on. For example, The Communist Manifesto of 1848 of Karl Marx and Friedrich Engels indicates a basic Marxist perspective on law and justice worth reflecting on. Writing The Communist Manifesto in December 1847 to January1848, Marx and Engels said: "…But dont wrangle with us so long as you apply to your intended abolition of bourgeois notions of freedom property, the standard of your bourgeois notions of freedom, culture, law, etc. Your very ideas are but the outgrowth of your bourgeois production and bourgeois property, just as your jurisprudence is but the will of your class made into a law for all, a will, whose essential character and direction are determined by the economical conditions of the existence of your class."1 In Marx-Engels Gesamtrausbe, 1845, pages 52-3 (as reflected in Bottomore and Rubel, 1965, p. 288 and 229), Marx and Engels further said: "Since the state is the form in which the individuals of a ruling class assert their common interests, and in which the whole civil society of an epoch is epitomized, it follows that the State acts as an intermediary for all community institutions, and that these institutions receive a political form. Hence the illusion that law is based on will, and indeed on will divorced from its real basis…Civil law develops concurrently with private property out of the disintegration of the natural community. Among the Romans the development of private property had no further industrial and commercial consequences, because their whole mode of production remained unchanged. Among modern peoples, where the feudal community was disintegrated by industry and trade, a new phase began with the rise of private property and civil law, which was capable of further development…It should not be forgotten that law has not, any more than religion, an independent history." There are several variants of Marxism in the same way that there are several variants of Christianity. One Marxist, Vladimir Lenin (1917, p. 56) said: "To decide once every few years which member of the ruling class is to repress and crush the people in parliament---such is the real essence of bourgeois parliamentarism, not only in parliamentary-constitutional monarchies, but also in the most democratic republics." Based on the passages from Marx and Marxists, therefore, the main legacies that Marx and Marxism gave humanity that can be useful for legal theorists, researchers, and society are as follows: 1. The idea that laws, being part of the superstructure of society, can be serving only a few and not the whole of society. In a democratic setting, laws are made by representatives of the people in parliaments and congresses. However, Marxists continually criticize that such congresses and parliaments are nothing but mere superstructures or institutions in which the representatives of the bourgeoisie hold offices. Given the unequal access of citizens to economic resources, it may be possible that at some points in time, it is only a minority of the citizens, particularly from the wealthy, that are represented in our organs of democracy. Thus, society must continually reflect if laws defend only the interests of a minority and whether a miscarriage of justice has been institutionalized through unjust laws that defend the interest of only a few. The idea that laws can be part of superstructure serving a few and not the majority or whole of society is a useful framework for examining our laws. Legal theorists can assess, for example: for whom are societys laws? Are the laws serving only a few or are they really serving the majority of our society? What can we do to make sure that laws serve the interests of the majority and not only a few? 2. That notions of justice have a class perspective or class bias. The "bourgeoisie" has a notion of what is just that is different from what the "proletariat" consider as just. Marxists argue, for example, that for the bourgeoisie, earning a profit from capital is just and lawful. In contrast, Marxists argue that the "proletariat" view or will eventually view that earning profit from capital is unjust although it is "lawful" because a particular social order serve the interests of the bourgeoisie and other ruling classes. Societies need not adopt wholly the Marxist perspective on the matter but it may useful to find out whether our specific notions of what constitute justice may be favorable only for a minority. For example, if bails are exorbitant and only the rich can afford the bail, is there basically an injustice in what we may perceive to be just given that the rich and the poor are not accorded fundamentally equal protection under the law? If the rich can effectively escape from criminal prosecution because of their army of lawyers and the poor is unable to have access to the same lawyers, is it not possible that there is justice for one sector of our society and injustice for the majority? We may ask: do our notions of justice provide comfort for the rich but not for the poor? This matter can be the concern of legal researchers. A myriad of legal research can be done on the matter. For example, what are the points for reform of our laws? How can our laws serve the interest of justice? How can the justice protect and provide comfort for the many and not only for the few? 3. A nations laws reflect a particular mode of production and class relations. Laws are part of the political superstructure erected on economic system or mode of production (Lenin, 1918, p. 8). This is a basic theme in Marxism of all types, whether it is of the Leninist type, Stalinist, Trotskyite or one of the modern Marxist perspectives. Do our laws emphasize free enterprise too much or is there legitimate room for greater government role in the economy. Of course, Orthodox economists advocate maximum economic freedom and non-intervention of the state in the workings of the market. However, given modern crises, society must continually examine whether greater roles should be given to government especially with a general recognition by economists that there is market failure even as there is also government failure in the allocation of scarce resources. 4. The study of laws should be done within a historical context. As the Marxist perspective stress that the study of laws cannot be divorced from history, it is worth assessing whether our laws continue to be relevant and whether they are attuned to the needs of the 20th century? What needs did our current laws addressed? Are the needs the same as when the laws were formulated? Are the solutions to the problems that our laws attempt to address still valid today? Are the solutions being provided by our laws to social needs and problems of the yesteryears still scientifically valid given our current knowledge and advances in science and technology? To what extent do our laws reflect history? Given developments in our history, what laws are no longer relevant? What laws ought to be junked or replaced? Meanwhile, there are also Marxists that seems that belong to an intellectual tradition outside of Marxism-Lenninism-Stalinism. One of such Marxist intellectual is Louis Althusser (1918-1990) who was aligned with the French Communist Party. According to the www.marxist.org which is website of Marxists, Althusser is "generally regarded as the foremost advocate of modern structuralism." It appears obvious that Althusser was influenced by the Marxist-Lennist idea that of relationship between the superstructure and the mode of production of society in which laws and peoples notions are part of the superstructure. Following the perspective of Althusser, it is possible to view laws as part of a social structure "that underlie all human culture, leaving little room for change or human initiative". According to the Marxist website, Michel Foucault is also a representative of the Althusserian current of Marxism. Based on the foregoing, therefore, we can conclude that legal theorists and legal researcher will find useful principles and points for studying laws and social justice from Marx and Marxism. In adopting key Marxist principles and points for Marxist studies of laws and social justice, however, legal theorists and legal researchers need not adopt the whole Marxist point of view. For instance, they need not adopt socialism and an anti-capitalist stance. One important that appear important to learn from Marx and Marxism and studying laws and justice are the notion that justice can be an unsettled notion in society and the notion that may be dominating is the notion of the wealthy and the powerful. Those who want to reform a nations laws can adopt the approach of assessing the relevance of our laws from a historical perspective. We can also reform our laws based on differential of access to justice between the rich and the poor. Society can take the cue from criticism made by Marx and Marxists on how social laws and justice can be advanced. For instance, if laws can be serving only a few and not the whole of society then perhaps one form of reforming are laws are to continually ask the question: whom does the law serve? How can we create or improve our processes and institutions so we can ensure that our laws serve the majority and not only a minority? Perhaps, the answers to the question can lie in creating supplementary structures for law-making and improving system through which laws can be formulated. Another possible way to address the problem is to improve mechanisms for consultations and ensure that all stakeholders---or all of those who will be benefited or disadvantaged by the proposed laws will be consulted in the process of formulating laws. . If laws have can class perspective or class bias, then perhaps one area for reform is to involve as many stakeholders as possible in the formulation of a perspective that will be acceptable to the greater majority of our population. Perhaps our notion of what constitute justice can be a subject for debate as well as discussion in our society. Popular participation is key to ensure that our notions of what constitute justice are those that are widely believed by our citizens. As discussion will have to involve the greater number of population, the formulation of conceptual unities on what constitute justice in our society would have to involve an improvement of our democratic structures and processes. Indeed our laws may reflect what Marx would call as "mode of production and relations of production". The Marxist notion can be accepted even by non-Marxists even if laws are not only for the "mode of production and relations of production". The discourse need not be contested and instead society and citizens can opt to deepen the link between laws and social needs. In other words, social discourse can be transformed into a discourse on the formulation of ways to ensure that our laws are relevant to our social needs. Meanwhile, the link between history and laws as argued by Marxists is something worth exploring and encouraging deeper. If history has a direction and there are trends that can be revealed in the study of history, can laws be formulated or can we reform our laws such that they anticipate the direction to where our society is heading? Can we build study groups, assess the movement of our society, and formulate laws compatible with the trends and movement of our society? Indeed, the Marxist critique can be used instead to improve our society, reform our laws, and unify our citizenry on a more popular notion of justice. Reference List Bottomore, T.B. & Rubel, M. (1965). Karl Marx: Selected writings in sociology and social philosophy. Middlesex: Penguin Books Ltd. Ekelund Jr., R. and Hebert, R. (1997). A history of economic thought. New York: McGraw-Hill (4th Ed., International Edition). Lenin, V. I. (1913). The three sources and three component parts of Marxism. In Lenin: Karl Marx and his teaching. Moscow: Progress Publishers, 1977 Printing. Lenin, V. I. (1917). The state and revolution. Peking: Foreign Languages Press, 1976 Printing. Marx, K. and Engels, F. (1848). The Communist Manifesto. In Karl Marx and Friedrich Engels: Selected works in one volume. New York: International Publishers, 1980 Printing. Spiegel, H.W. (1974). The growth of economic thought. North Carolina: Catholic University of America. www.marxist.org. (___). Articles on Louis Althusser and Michel Foucault. Accessed 4 December 2009 . Read More