Karl Marx
1818-1883
Karl Marx was a German philosopher famous for his critique of capital.
Marxist jurisprudence identifies the hierarchy of law as being the same as the hierarchy of labour. In other words, the owners of the modes of production also have power over the law (see Garth 2021, 83).
- Marx paid critical attention to material distribution, wealth accumulation, and inequality.
- He was further interested in how ideas are historically specific in time and place. Marx termed this epiphenomenon.
- Linking these together, Marx identified how the historically specific development of economic production not only created but was dependent on class inequality.
- This social mode of production was vital, Marx observed, to maintaining hierarchies and power structures that benefited a specific social, legal, and economic class.
According to Marx,
The economy forms the basis of the whole class society: “[Capital] [is] that kind of property which exploits wage-labour, and which cannot increase except upon conditions of begetting a new supply of wage-labour for fresh exploitation.”
According to Marx’s mode of production, power is always held by one class (or coalition of classes) over the other (dominated classes of society). Classes are not necessarily individuals consciously coming together, because there is no one master, hegemon, or sovereign.
Class and class power, for Marx, identified social relations that were always based on one economic class having power and controlling the other class. And this power and control was based on control over the modes of production in industrialization.
Quote
”Power is not ‘sovereign’ or ‘power of the state’ but is distributed through social relations and practices.”
Foucault is a Marxist theorist in his identification of power as diffused through society and social norms.
Marx established a new theoretical object: the (capitalist) mode of production. The control of the mode of production is the capital relation.
Marxist Jurisprudence
Legal studies intersect with Marxism through
- critique of law through attention to economic production and capitalism,
- identifying economic violence, and
- Marxist legal scholars connecting Marxist theory to legal, juridical violence.
Under modern conditions of capitalism, there sits a contradiction and a gap:
- The ideal of freedom in political and economics senses.
- The realities of un-freedom occurring as a consequence of impoverishment and inequality.
Marxism is a worldview. Marxism recognizes that we live in a market society where capitalism has caused generalized commodity production. Commodities are produced and given value through labour. This labour is the labour of the working class who sell their labour power for wages. This working class is also, in the classic Marxist observation, prohibited from investing, or accumulating, wealth. The wealth accumulation is left to the capitalist, the bourgeoise, the business owners who maintain control over the modes of production. To achieve equality, Marxism believes that the workers must revolt against the capitalists to bring about a different social order and social system.
Marxism is also a perspective and a theoretical tool. Marxism offers an analysis of political, social, and legal systems viewed through a fundamental critique of economic modes of production and their social impact. Economic modes of production are identified as reinforcing systems of inequality.
How is This Relevant to the Study of Law?
For Marx, freedom and transformation (change) would come through the rational, deterministic ways that material conditions change. In other words, when we change how we sustain ourselves in our daily lives — how we access products, goods, services; how we work; and so on — inequalities will also change. Consciousness comes from the material life that one is surrounded by. Therefore, if we are conscious of the social modes of production and relations of production, then we are able to affect change.
Ideas are epiphenomenal. This means that ideas are small phenomena reflecting the prejudice of the speaker and their historical time and place. Ideas and consciousness as a self-reflexive or internal thing, therefore, do not shape the world. Rather the historical time and place, and its physical materiality, or its modes of production, are what shape the world. So, ideas are epiphenomenal in that they are a reaction to outside sources. Is law an idea? For Marxist jurisprudence, law is an idea that has become an ideology.
Epiphenomenon: Ideas are historically specific in time and place.
Law == ideology
Law, in all this, can be diagnosed as an “ideology” — where law’s central role is to facilitate the commodification of social life. In other words, law enables the market and alienation.
How can capitalist modes of production be resited?
Marx and Marxists believe that it is possible, and necessary, to counteract the exploitation of labour. This can be done by using labour power as its own commodity. For this to happen — for people to become free of the capitalist mode of production — people needed to be enabled to participate in economic life. We see evidence of this ideal alternative to capitalist economics in history: revolutions such as the Russian Revolution, collectivization in Tanzania, peasant agrarian reform in Guatemala (transitioning ownership and modes of production), Salvadore Allende’s socialism in Chile, Fidel Castro in Cuba, Marcos in Chiapas, SYRIZA in Greece.
Ultimately, critiques of capitalism oppose violence in its economic form but also as physical, systemic, and epistemic (see Rajah 2021, 154).
Remember the different types of violence from Module 2?
- physical violence
- economic violence
- systemic and structural violence
- epistemic violence
Marxist jurisprudence identifies law as an ideology that supports a capitalist mode of production. However, because law is epiphenomenal, it can exist to support different ways of being in the world, not solely capitalism. Marxist jurisprudence can bring critical attention to the epistemic violence of law if law does not fight toward greater equality and justice. If left “unchecked,” law determines that to be “free,” to have “rights,” to have the “law on your side,” one must subscribe to cultural, economic, and social norms. However, this is not necessarily natural or normal: These norms are not universal, but produced, performed, and historically specific. They are epiphenomenal.