‘Written laws’, as Anarchasis said, ‘are like spider’s webs; they will catch, it is true, the weak and the poor, but would be torn in pieces by the rich and the powerful’ (as quoted by Plutarch in Parallel Lives , ‘Solon’)
This was said way back in the 6th Century B.C. , and this outlook towards law has persisted among a large section of thinkers, philosophers and intellectuals ever since.
In the 18th and the 19th Centuries, when the British were the superpowers, and the laws made by them governed a large section of the population of the world, the theory of law emanating from the sovereign, and the people’s compulsion to obey the law largely influenced the intellectual outlook towards the law. This formed a heady cocktail with the notions of liberalism and the applicability of Darwinian evolutionary concepts into the field of legal philosophy – which were gaining popularity among the philosophical and intellectual circles.
We hear the first distinguished voice of dissent from Rousseau. He proclaimed that, ‘Man is born free, but everywhere he is in chains’. The people, especially in France, in the late 18th Century got frustrated with the oppressive laws which were constantly being framed by the rulers of the Bourbon dynasty, under the direct influence of the rich bourgeoisie classes. These laws were framed to the advantage of the men in power – the ruling classes, the nobles and the aristocrats – together called the bourgeoisie, and to the extreme disadvantage of the proletariats – i.e. the poor people. So they rose up in revolt.
The history of mankind is full of such instances of people rising up in revolt against tyranny and coercion, perpetrated by the ruling classes through oppressive laws.
Rousseau did not directly allude to the problem of law being used as a tool of oppression by the ruling classes. Neither did Tom Payne who hovered close to the issue.
It was left to Hegel, and later on, Marx and Engels whose theories were applied in the practical field by Lenin, and theories which were later on modified by luminaries like Gramasci, to deal with the concepts of superstructure, dialectics and the state.
It must be remembered that, as the novelist John Steinbeck had emphatically announced, Rousseau, Payne, Hegel, Marx, Engels, August Spies, Lenin, Gramasci – they were not the causes of the social system – they were the effects – the effects of an oppressive social order which need voices – strong and intellectual voices, to protest, and to set up stable counter-ideologies.
Before commencing with our discourse in proper, let us focus at the intellectual backdrop on which Marx laid down his analysis of state and the law. Marx gave primacy to the economy, which, according to him was the base, i.e., the basis on which other aspects of the society, viz., the political framework, the law, religion, ethics, etc. stood as superstructures. His theory of law and the state is primarily a theory based on economy.
Marx regarded society as unstable. All the classes of the society struggles to acquire capital, because, as Marx held, capital is the source of power. He looked at history of mankind as a history of class struggle. This struggle makes the society unstable.
Now, let us look, very briefly, into the outline of the Hegelian dialectics. Dialectic implies union of opposites. Hegel’s intellectual ideas on dialectics was based on the stress between status quo and the progression of the society. Hegel sought to study the society from the framework of this stress and tension.
Karl Marx did not conform to Hegel’s idealistic and ideological notions pertaining to dialectics. Instead, Marx focused on materialism, and developed this notion of dialectic materialism. Marx sought to study the human relations within society, and the evolution of such relations through the lens of this dialectic materialism, and christened this unique intellectual approach as historical materialism. As Marx held, the ideal is “nothing else than the material world reflected in the human mind and translated into forms of thought”.
According to Hegel, the bureaucracy was an archetype of intercession and negotiation between the civil society and the state. But Marx did not conform to this Hegelian notion. As per Marx, the bureaucracy, under the guise of ‘general interest’ only furthered its own interests. According to him, if the notion of ‘general interest’ is debunked and deconstructed, it would contort itself to ‘class interest’ – the interests of the elite ruling classes and the owners of capital – from which power emanates.
Unlike Hegel, Marx did not emphasize on the importance of the civil society. As per Marx, people from those strata of society which do not own capital and consequently are deprived of power were not a class of civil society, but a class on which civil society rests and moves. Because, those ‘have not’s comprise by far the vast majority of the society, Marx sought to emphasize upon those classes, i.e., on the deprived lot, and not upon the civil society.
Marxist Approach Towards the State and the Law :
According to Karl Marx, the history of mankind has been a history of class struggles. And Marx analyzed this struggle through the lenses of economic oppression of the poor by the rich. Every class struggles to own the capital. Those who own the capital have all the power. So they make all the laws which enable them to retain their power and capital, and to deprive the ‘lower classes’ of the same. Thus, these laws are used by the capitalist bourgeoisie to socially, economically and politically oppress the ‘have not’s, i.e., the proletariats.
Law is imposed from the top, upon the society as a superstructure, i.e., as a ‘top-down’ model. However, ideally, law must emanate from the, from the grass-root level – from the masses – from the deprived lot. This does not happen. Thus, law is used as a tool of oppression.
The machinery of the state is run by the capitalist classes. They use the state as an imposing superstructure, to keep the ‘have not’s down. And as an instrument, they use the law.
As Marx noted in The Communist Manifesto, “ The executive of the modern state is but a Committee for managing the common affairs of the bourgeoisie”. Thus, the state was seen as an instrument of the ruling classes for oppressing the proletariats. Marx regarded the state to be “illusory”, and that it “served as a screen” to cover the “real struggles waged by the classes against one another”.
As far as the laws for the capitalist society are concerned, as Marx held, such laws are but a bunch of legal rights relating to the use and disposition of private property such as capital.
Initially, Marx attempted to analyze the existent gulf between the civil society and the state. He regarded the state as a political notion. He aimed to deconstruct this abstraction.
But, later on, Marx stated focusing on the role which a state plays, and is intended to play, in a social, political and economic set up. Thus, we can see a shift in Marx’s outlook towards the state. Whereas initially he emphasized on a gap between the state and the society, later on he recognized the state as one of the major players in the society.
In course of his intellectual journey, Marx started to regard the state as a tool of class oppression.
Marx regarded the notion and functions of state as to be in contradiction to the real needs and interests of all the members of the society. At every stage of production in the human history, some power group or other supported the interests of the dominant elites. According to Marx, the state mediated the formation of all community institutions, giving them a political contour. Thus, as Marx wrote, there exists “…the illusion that law is based on will, that is, on will divorced from its real basis, the free-will.
Marx held that, sometimes the state can represent a section of an elite class and not the whole class. One class can also control the state for the benefit of another class. Where a state, from its inception, is subordinated to a bourgeoisie society, it turns into an instrument of blatant oppression – Marx regarded the North American countries to be an example of such.
Marxist theory has dual views of the state. One notion regards the state to be an instrument of the ruling class – a tool in the hands of the ruling classes to oppress the proletariats of the society. The other view holds the state to be independent from, and superior to all the ruling classes, and the dominant force in the society. In the independent role, i.e., the second view of the state, the state, despite being politically independent from any particular class, remains the protector of the socio-economically powerful classes, and the elites. In both the views, the state is a coercive and oppressive machinery. The difference is that, according to the first notion, the state acts at the command of the ruling class, whereas according to the second view, the state, despite functioning autonomically, it does so on keeping the interest of the elite bourgeoisie classes in mind.
In this regards, special attention must be given to the term ‘relative autonomy of the state’ as coined by Poulantzas in his discourse Political Power and the Social Classes. This means that whatever be the extent of the autonomy a state enjoys, it remains a state of the ruling class, leaving ample scope for oppression to the ‘lower classes’, i.e., the proletariats – the ‘have not’s. There are several pressures which make the state serve the needs of capital. Such pressures and constraints, as the Marxist scholars explain, are external to the ruling apparatus – emanating from the national and international exigencies.
The reason behind the autonomy of the states, as the Marxists seek to explain, is to protect the existing social order – a social order whose prime beneficiaries are the dominant ruling classes, a social order which oppresses and represses the large masses of the proletariats.
These views have come under severe criticism which we shall study later on in course of our discourse.
Marx has not enunciated his views on law separately in any writings. His opinion about law remains scattered throughout the various discourses written by him. Marx, along with Engels, were not interested in an academic definition of law. Instead, they focused their attention on the creation of law – the origin of law and ideology, and the role played by law in the social, political and economic framework.
The very notion of private property emanates from law, legal rights and such other legal intricacies. The concept of ownership of capital is also but a legal notion. As Marx dealt extensively with private ownership and propriety of capital, his works inevitably had an angle of law, i.e., law was the sine qua non of most of his treatises and discourses. For instance, capital enables the owner of this capital to employ labour of other people for his personal use – labor which is grossly oppressed by the owner of capital who has power – a power emanating from capital, a power validated by law, to coerce the labour in order to enhance the capital and thus, to the extent of further enhancement of power. The workers are grossly exploited, and are denied full value of the efforts put in by them. This establishes a very direct link between law and oppression.
According to Marx, law obscures power relationships. For instance, legally speaking, people have right to enter freely into contracts, but two parties entering into contract generally do not have a level playing field, i.e., they do not have equality of bargaining power. One party has more bargaining power than the other. Then, such a right becomes illusory – a mere ideological cloak, and phrases such as “equality before law” are rendered meaningless.
As per Engels, “… the power given to one party by its different class positions, the pressure it exercises on the other – the real economic position – all this is no concern of the law…That the concrete economic situation compels the worker to forego even the slightest semblance of equal rights – this again is something the law can not help…”.
Prominent Marxist Thinkers :
i)Karl Renner :
Renner, in his Institution of Private Law and Social Functions, tries to use Marxism to formulate a theory on law. He attempts to show how modes of ownership changed over the time. As the medieval feudal society transformed into modern capitalist society, the ownership of capital became a source of power and command.
Renner shows how the powerful capitalist bourgeoisie exercise their commanding authority over the proletariats who are tied to him by a contract of service. Thus he can control other persons, and, in this way, the ownership of capital becomes a source of oppressive legal institution. Thus, private ownership leads to institution of public law, and, naturally, brings oppression hand in hand.
Renner shows that, in the capitalist society, the owner of capital can now use his ownership to control other persons. Thus, he (the owner) gets power, power to make laws to control other people – and this power arises from ownership of capital. Such a situation, going by Marx, inevitably leads to oppression. The powerful owner of capital can now make laws to validate his power to control (and thereby to oppress) other people. Thus, Marxist notions of law being an instrumentality in the hands of the powerful people – the source of whose power is nothing but the private ownership of capital, to make a social situation conducive to the maintenance and enhancement of their power over the large section of the deprived lot, and in oppressing the weak and the powerless, gets a solid logical standing from Renner’s academic discourse, though Renner did not allude directly to law being used as a tool of oppression.
Renner explained how, in course of time, legal institutions assimilate and integrate the function of ownership into them, and the institution of private ownership gets transformed into public laws. Even under such circumstances, law remains an oppressive mechanism. It perhaps does not remain a tool of oppression in the hands of the owners. Instead, those who operate, control and regulate the law now assumes power, and use the law to secure this power, thereby making the law an instrument of oppression in their hands – i.e., the ruling classes retain their oppressive usage of law, through sanctions and such. Renner did not directly allude to such oppressive nature of law, but such can be logically inferred from his work
Renner was more interested in the relationship between property and society, than between law and oppression.
ii) Antonio Gramasci :
This great Italian Marxist thinker had his unique take on, what he called “ideological hegemony”. He held that class domination happened not only through physical coercion and oppression, but also through popular consensus, doctored via propaganda through mass media, culture and education, which, just like the legal system, were controlled by the ruling classes.
Thus, there was need to create a “counter – hegemonic” view of things, in which the mass media, mass culture, education etc., hand in hand with law, would have a prominent role to play. Gramasci’s notions influenced almost all the Communist states around the world. However, even in Communist states, has been seen, the powerful people, those who make and administer the law, use the law as a tool to oppress the powerless. In those states, Gramasci’s notions of counter-hegemonic propaganda are mutilated to the level of becoming a pro-Government propaganda, to influence the general public, via large scale use of mass media, mass culture and mass education, about the benevolence of the Government, so that, beside the law the ruling classes in those countries can also use such publicity campaigns through propaganda laced with popular culture to secure their seat (rather, throne) of power.
This shows that how the profound academic principles, which emanate from the unfathomable depths of intellectual integrity, can be intentionally mis-interpreted and debased to a vulgar level by the unscrupulous people indulging in power-politics to retain their power and sway over the masses. This presents a danger to mankind. The atom bomb, which took its birth via intentional mutilation of Einstein’s profound philosophy, showed it. Similarly, Communism, where the towering philosophies of Marx, Engels, Gramsci and the like have been rampantly mutilated and misused by power-lusty politicians, also, at a point of time in rather recent history, has showed how such misuse of academic theories can pose as severe threat which looms large over mankind, threatening to unleash lethal and fatal thunderbolts upon the human race.
iii) Pashukanis :
Pashukanis focused on the historical approach towards understanding of the bourgeoisie forms of law. To him, all law were contracts, meant to facilitate Commodity Exchange. With growth of trade, contracts and commodity exchange grows and so does the “legal superstructure”. Pashukanis insisted that this commodity form of exchange is the root cause behind the genesis of law. Thus commodity exchange, being the cause, precedes the law, which is but the effect of commodity exchange. This notion is not immune to criticism, as we shall see later on in course of our Project work.
As Pashukanis says, law deals with formal equality of citizens and ignores the substantive inequalities between them.
Critical Appraisal of Marxist Theories of Law :
There are two different approaches towards criticism of the Marxist theories. One approach criticizes Marxian approach towards analyzing the society, and the other approach criticizes the inapplicability of Marxist theories in the modern society.
Marx attempted to see and analyze the society from the lenses of economy. Many scholars differed from Marx in this regard and criticized the notion of regarding the economy as the base and all other social factors as superstructure, arising from the base of economy. There can be other dimensions of the society, as these critics say, like gender, race and, in the Indian context, even caste from which social inequality and class struggles can be explained (In this context, it is worthwhile mentioning that it is due to this fundamental difference that Dr. Ambedkar’s plea to the Marxists to take the anti-caste movements in their fold was rejected by the Communist Party of India seventy odd years ago.). Marxist response to such criticism is that all inequality and oppression in the society are, at the end of the day, in the interest of capitalism – especially of that strata of social elites who hold power and seek to retain this power by oppressing the people from the lower strata of the society, using political institutions like law, administration and such as a means to such ends.
The Marxist notion regards the mode of existence of the primitive men and women to be harmonious, in simple Communist societies, where acquired food and etc. were evenly distributed among the members of the society and the notion of private property, wealth and capital, and the powers emanating from these things were not existent. Consequently, the notion of oppression, which emanates from power, which, in turn emanates from private property, was not there among the primitive men and women. As the Marxist theory holds, law originated because of protecting the interests of the capitalists classes, i.e., to protect the private ownership of capital. Because the concept of private ownership and private property was not there in the primitive times, and because, due to the prevalence of the barter system among individuals in those days, the concept of money and wealth, i.e., capital, did not arise, the question of law was not there. Consequently, the notion of law being used as a tool of oppression by the powerful owners of capital against the proletariats did not arise. Thus, in those Communist societies, there was no oppression. From this angle, the Marxists attempt to signify the importance of Communism as a mode of alleviation of oppression.
There is a paradox in this line of argument. If there was no law in the primitive days, what governed the lives of men and women in those societies? What regulated their lives? Were their lives, being lawless, not based upon quarrel, squabble and fights to obtain food and shelter, as the Darwinian notions of ‘survival of the fittest’ suggests? Being devoid of regulations, checks and balances, were their lives not, as Hobbes had suggested, ‘nasty, brutish and short’?
Besides, will ideal Communist societies then have no laws? How much justified is it to do away with law to do away with oppression? Therein, the Communists differ with the Anarchists, stating the importance of public laws, laws vital to protect the common people, legal sanctions against criminals, and the like. This gives room for further criticism.
Marx’s views on law are often regarded to be over-simplified. Marx said law exists to promote the interests of the ruling classes and to exploit the workers. This is true for many cases, but that is not the only function of law. Law is also needed for a consensual functional approach – to maintain coherence in a social order.
There are many laws, like the Fundamental Rights – Right to Education, Right Against Child Labour, Right Against Bonded Labour, Right Against Human Trafficking, etc., which restrains oppression. Oppressive laws like the infamous Doctrine of Segregation in the America, the laws of the Apartheid in South Africa, the Rowlatt Act in British India etc. have withered away with time. Now we have laws promoting Human Rights.
Indeed, although law is used to the advantage of the ruling classes, in many cases it also imposes restrictions on them. Marxist style absolute contempt of the law is not what the doctor orders for.
Marxists have a counter to this argument. They say that when law inhibits oppression, it is not for altruistic reasons, but to further the interests of the ruling elites.
Indeed, law can be used to secure social and moral standards – but whose? Is it not of the ruling classes and the all-powerful middle classes – the petite bourgeoisie? At times law is used to preserve family and social order – but why does an oppressive and patriarchal social and family order need to be protected by law? For whose interest is it? Is it not for the ruling elites themselves?
Bureaucratic organizations like the administration, the legislature etc. are instrumental in establishing law and order, needed for ensuring a peaceful social life of individuals. Regulations and sanctions need to be orchestrated to prevent crimes, to give both the parties to a contract a level playing field. Marxists look at all these functions of law from the perspective of a cynic, regarding these notions to be illusory. But indeed there is a limit beyond which, however might the Marxists try, such vital functions of law can not be debunked or deconstructed.
There are many laws which are seemingly against the interests of the ruling classes. Laws which limit their power. Laws which act as a check towards absolute autocracy and laws which prevent the ruling classes from oppressing, the common masses, from taking the lives and property of the people in general without rational reasons for doing so. Evidently, these laws contradict the Marxist notion of law being used as a tool by the ruling classes to oppress the proletariats. The Marxists have a counter to this. They say that laws, which prima facie appear to be contradictory and inimical to the interests of the ruling classes are a mode of internal self regulation. By these laws, the general interests of the elites are safeguarded. Such restrictive legislation protects the general section of the elites because excessive misuse of power by the elite ruling classes might induce and compel the people to rise up in revolt against their reckless tyranny and overthrow them from their seat of power. So to protect their power, such restrictive laws are made so that rampant misuse of power is not made by any member of the ruling elite class, thereby alienating the proletariats who comprise a large section of the population of every state and society.
Many Marxists hold that the laws which are seemingly for the good of the proletariat masses are but stale morsels thrown contemptuously towards them by the state. These laws are like bribes – small concessions to buy off and do away with the demand for more fundamental social change. Whenever the ruling elites feel that a clamour for such sweeping changes might arise from the general masses, they make some small and seemingly benevolent legislations to stop them from making further demands for social changes. These arguments surely do have a very strong logical foundation.
Thus, benevolent laws, i.e., laws which are seemingly meant for the good of the masses, and laws restricting the excessive misuse of power by the ruling elites, at the end of the day, serve as safety valves, as the Marxists insist. Thereby, even such benevolent and self-restrictive laws are also nothing but tools – cleverly devised by the ruling classes, to bolster and secure their seat of power.
Of course, notions of legal plurality might arise, and this might lead to the difficulty in identifying a cohesive and small group of ruling elites, who impose their will on the large masses, thereby leading to oppression via law, when these wills of the ruling capitalist elites, intended to further their own interests, take the form of law.
However, this Marxist-pluralist debate is beyond the scope of our present Project work.
Another line of criticism of Marxism stems from the inapplicability of Marxism in the present social context. The concept of ‘managers’ controlling the private property of the owners of private property has split off the ownership of capital from the control and regulation of capital. The managers do not own the private capital. They control it. The Marxist notion of power emanating from the control of private capital and the concept of law being developed and used by the owners of the capital to secure their power and capital, thereby the section of elite capital owners being converted into powerful ruling classes did not envisage this situation. Consequently, the Marxist theory does not leave ample room for explanation of this new development. The theory of Marxism is not flexible enough to take such a development within its fold and to explain this development. Hence, Marxism has been labeled ‘backdated’ and no logical counter to this criticism has yet been developed by the Marxist scholars.
There is not always a direct correlation between state power and class interest, as the critics of Marxism would insist. To give an illustration, the state needs revenue and it can not obtain all the needed money from the proletariat classes. So, taxes must be levied on capital. The Marxist counter-argument here can be that such measures are taken by the ruling classes under compulsion to maintain their power and sway over the sub-ordinate classes.
Had the state been completely under the grasp of capitalists, restrictive regulations like progressive taxation and such could not have been formulated. Thus the Marxist notion of power being equivalent to capital can not always hold good. However, as the Marxists would say, the gulf between power and capital, if existent, is not wide.
The state is indeed under pressure from below – from the toiling masses for maintenance of a stable and organized labour force. The safety-valve measures undertaken by the state to deal with such pressure has already been alluded to. However, why does the state need a stable, efficient and organized labour force? The answer is obvious – so that the capitalist elites can maintain and enhance their capital, which in turn enables the state to secure and maintain its power, thereby fortifying itself. In this count, the Marxist notion of direct linkage between capital and power gets validated, and thus, in this point at least, the critics of Marxism get beaten by their own stick.
Nevertheless, inequalities in distribution of wealth and such other inequalities persist. Oppression and exploitation of the proletariat masses by the powerful elites to secure and enhance the capital and power of the later group still remains, and the legal system, with all its pathbreaking developments, still continue to be used as a machinery by those in power to exploit the large section of the masses who do not have social power thereby enabling the ruling elites to secure and bolster their position of power in the society. Thus, Marx’s theory can not be refuted pointblank.
Of course, in today’s society, especially in case of benevolent laws like Labour Laws, Industrial Disputes Act, Consumer Protection Act, Human Rights Legislations, Laws meant to protect the Employees of the Unorganized Sector, etc., all these theories are not applicable. Nevertheless, inequality in bargaining power between two parties while entering into contract still does indeed exist. There are still many oppressive laws, like many of the International Trade Laws wherein the rich countries try to squeeze in profit from the poorer countries at the cost of the welfare of the poorer countries (like forcing them, by making them subject to economic duress, and stringent conditions for loans forwarded by the World Bank and the International Monetary Fund, to reduce their tariff even for essentials like agricultural commodities), Intellectual Property laws which enable First World countries to patent indigenous products of many Third World countries (like an U.S.A. firm patenting Basmati Rice of India).
Whether the role of Marxist understanding and analysis of the law is applicable in the present day situation or not remains a subject matter of profound debate – debates into which we shall not venture in the present discourse due to paucity of time.