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Without doubt Karl Marx is the most remarkable and influential thinker in the 19th century. His philosophical treatises are still being read and investigated. In spite of the fact that he was ignored by scholars in his own time, his views and ideas became basic in the social movement after his death. He produced a lot of important political and economical documents. The followers of Carl Marx’s theories number a considerable portion of the world’s population. His greatest contribution to the society was the essay ‘Capitol’; it influenced people’s views about the society in all parts of the world.

Marx presented law as the ruling class control over the workers. He considered that the law should be used to sap class rule. But what presented a dilemma for Marxists was the fact that this law was not necessarily just, and at the same time they didn’t have to be loyal to it.  There were two ways for Marxism: either it resulted in failure, being unable to search for the law’s help in correcting injustice, or, if the law existed and worked fairly, Marxists were wrong, denying the existing of justice within capitalism.

Jurisprudential hopes of Marxists were limited to such a conception of law, where law is the work of authoritative social processes for producing legal rules that seemed sufficient to the ruling class. There is an unsolved problem within one person: a good lawyer must believe in improving possibilities within the system, and a good Marxist must contradict the law’s role in solving social problems. So this is not a surprise that today Marxism doesn’t take an important place in contemporary legal theory.

To compare, natural law states that law is real and treats it as just and worthy of loyalty. So now we understand that Marxism and natural law are incompatible and present different point of view.

Two essential historical limitations influenced the appearance and disappearing of law. The appearance of it is connected with the society’s division into classes. Going through development and revolutionary changes the law and the state will die off because of communist, as the communism is the disappearance of classes.

Of course there are authors-Marxists presenting a viewpoint that in communism we see legal forms and legal relationships and thus in pre-class society the law also exists. But this viewpoint doesn’t coincide with that of Marxism, which states that if there are no class divisions, property inequality and exploitation we observe that the customs of such society considerably differ from the law and the statutes of class society. So these two viewpoints can’t be observed together, as it will lead to confusion.

Marxism tries to give a historical meaning to law. But there are also bourgeois philosophers of law who regard that law is outside classes and actually outside any peculiar social and economic creation. Bourgeois scholars don’t examine law from the part of historical facts, they try to derive the concept of this word in the word ‘law’ itself. They think that facts have no significant moments to define the law.

But many scientists do not agree with this opinion. They claim that it is impossible to define law if you don’t know about the existence of the law of slave-owning, if you didn’t hear about laws in capitalist and feudal societies. Only examining all those social and economical formations and their laws, we will be able to give fair characteristics to the law that are most typical and general. But it is necessary to remember that the definition of law cannot displace the examination of all forms and aspects of law as a particular historical phenomenon. In studying the most basic features we can distinguish law ‘as the form of regulation and consolidation of production relationships and also of other social relationships of class society’ (Engels, 1878). State power of the ruling class drives the law, and thus the law reflects the interests of the ruling class.

This is the definition that demonstrates the role and significance of law in class society. But it is incomplete. Marxist theory regards law as a unity of form and content. So the legal structure includes not only the sum of norms and actions of institutions, but also the unity of the social relationships that is reflected by law. Law is defined by economics, but at the same time law nevertheless influences the economy. This definition emphasizes three aspects of the matter.

First of all it is the class nature of law: law works for the ruling class. An attempt to regard law, as a social relationship that dominates class society, is an idealistic conception. The second aspect concerns production relationships in the content that is implemented by law. Class interests reflect their relationship to the means of production. Legal order is characterized by property relationships that take an important place in it. Communist society doesn’t need law, because there are no classes and labour finally gains the primary want, need and ability. The third aspect supports the opinion that coercive apparatus is a vital need in the functioning of a legal structure.

Relationships with legal manifestation considerably differ from those without such a manifestation. The form of this manifestation can be different: sometimes – good, sometimes – bad. It may maintain the development of these relationships or, on the contrary, hinder them. It depends on the fact whether state power is controlled by a revolutionary or reactionary class.

Bourgeois legislators concentrate their attention on form and completely ignore content. They turn away from life and real History. ‘They consider public and private law as independent areas, which have their own independent development and which must and may be subjected to independent systematic elaboration by the consistent elimination of all internal contradictions.’ (Engels, 1878) Bourgeois legislators usually determine law as an amount of norms with coercive power given by the state. Such a determination of law is a starting point for maintaining the so-called dogmatic method. Thus we move from particular norms to more general aspects and back, issuing from general positions in order to suggest a solution of peculiar legal case and disputes.

In the Soviet state the law was the means of devising and uniting the production relationships of class society and the social relationships which are connected with them. In the legal structure these relationships are demonstrated as property relations and as relations of domination and subordination. Particularly, they are shown as relationships that are created with particular views and are maintained by the will of the people; these relations are of the so-called ideological nature. But leaving aside the ideological conception of the law, the scholars emphasize that without the work of legislators, judges, police (in short, without the whole apparatus of the class state), law would become a fiction. “Law is nothing without an apparatus capable of enforcing observation of the norms of law” (Lenin, 1895).

The conscious will is the will of the ruling class. We find its manifestation in law, custom, in the activity of the court and administration. So we may come to the conclusion that the legal structure, or law, exists and works due to the ruling class that stand behind it, actually this is the apparatus of coercion and power in the form of the army, the police, prison guards and others. Of course it doesn’t mean that the ruling class has to use physical force in every case. A lot of things, such as obedience, are gained with the mere threat, with persuasions that fighting is useless, with the inspiring the people that they are helpless. Bourgeois legislators try to separate law from the state and to oppose ‘law’ to ‘force’, but this all is ruled by the attempts to conceal the class essence of law.

Often it is funny to hear proofs that law is independent of the state. Of course the dependence of law on the state doesn’t mean that the state forms the legal structure by its arbitrary will. Engels says ‘ the state itself is only a more or less complex reflection of the economic needs of the dominant class in production’. (1878) The proletariat had to form Soviet law in accordance with the economy, and particularly, with the existence of millions of small and very small peasant farms. Soviet law was very different from that of capitalist world. The major goals of the proletarian dictatorship were to protect the interests of the working class, to suppress the class elements hostile to the proletariat, and to defense the social construction.

Soviet legislators who regarded law as the totality of norms started talking about the similarity between bourgeois and Soviet law and to seek for general institutions and investigate the development of particular general bases for bourgeois and Soviet law. This tendency was very popular in the first years of NEP (New Economic Policy). The comparison of Soviet and bourgeois laws came from the realization of NEP as a return to capitalism, this theory found its reflection in the Marxist rows. But Soviet law considerably differs from the bourgeois law, in spite of formal resemblance of individual statutes, the Soviet law intended exactly for the victory of socialism.

Juridicial formalism is presented as a variety of reformism, i.e. Soviet “juridical socialism”, because it thinks only about norms and diminishes law only to logical operation of these norms. And thus the political and socio-economic entity of the matter is ignored. As a result such legislators come to the conclusion that change of property from an arbitrary right to a ‘social function’ (a tendency accepted in capitalist countries) finds its complete display in Soviet legislation. Making this statement jurists ‘forget’ completely about October revolution and the dictatorship of the proletariat. Thus it is not only necessary to know the norm, but also to be aware of what class, what state and what state apparatus is applying this norm.

Bourgeois conception of law is the main introduces confusion both into concept of law and into the concept of state and society. The bourgeois conception of the state in full measure reflects the legal conception of the state. Legal formalism skillfully conceals the unattractive class of the society. Bourgeois science maintains the idea that law strives to cover the existence of any conscious human relationships, social rules and phenomenon of social authority or social power. Thus bourgeois legislators find sources in primitive tribes and state that communism is inconceivable without law. They treat law as empty abstraction and transform it into the universal notion that lacks a historical content. So for bourgeois sociologists law turns into an empty form, they do not connect it with reality, with the relationships of production, with the class society, with the state as a concrete apparatus of power directed by the ruling class.

The theory of law is idealized, it proceeds, i.e. its representatives develop the theory. They start with the conception of ‘the idea of law’, putting it above social history; it is positioned as eternal, unchangeable and free from space and time. Stammler, representative of the ideological philosophy of law, said: ‘Through all the fates and deeds of man there extends a single unitary idea, the idea of law. All languages have a designation for this concept, and the direction of definitions and judgements expressed by it amount, upon careful study, to one and the same meaning’. (1976) Stammler ‘proved’ that despite all the differences that we encounter between life and activity of nations, or in legislating objects, we definitely see the totality of the legal idea and its similarity and equal intervention.

But certainly all these ‘proofs’ are very contradictory, as it is quite difficult to explain how ‘totality of the legal idea and its similarity and equal intervention’ created the laws of slave policy of the Middle Ages, the declarations of rights of capitalist countries, and Soviet Constitution, of course.

Actually it is impossible to provide basic and considerable proofs and understanding of the study of legal phenomena. The facts that define ‘law’ give the knowledge of what is law and what is not law. But the so-called forms of forms of knowledge don’t display the objective characteristics of the conception. These forms don’t depend on the past events and introduce all human experiences and its essential conditions.

For Marxists it was difficult to produce a jurisprudence as they generally regarded the law as an ideological instrument in order to support social relations. These relations were based on control of the means of production. Thus Marxists always spoke in the support of revolutions; they were not interested in gradual experimentation within the legal system. However, this ideology is hidden behind the law, i.e. the illusion that the law is above everything else in the society. When Marxists claim that the law is ideological they conceal two distortions. They are observed as a form of self-deception and other-deception. These distortions are: legal practice and existing social relations. Some Marxists argue that the law marks the resolution of class conflict in a way that makes it appear that all parties have had their say.

Welfare state proposes that the law has to be used to bring about major social change by peaceful means. There are two possible reasons for equalizing income:

  1. People are equal, all are respected, no rich, no poor, only middle class
  2. The rich may replace workers with technology (thus the growth in permanent unemployment was Marx’s main reason for predicting a revolution)

Today we meet an argument concerning the rich. They need extra money in order to invest in capital, and this will create extra working places for the poor. While the poor simply consume extra money, for e.g. on alcohol.

So we may observe a strong separation between production and consumption. People work hard in order to consume, they realize their values in satisfying their pleasures, etc. The welfare state in many cases accepts the Marxist’s conception concerning classes in the society, or at least some economic groups that do not change from each other considerably. But the welfare state differs from Marxist socialism in simply providing the guarantees for a minimum acceptable income level for leading an appropriate quality of life. But the welfare state doesn’t have in plans to equalize all incomes.

Some of the theorists who were closer to socialism claim that the poor will more benefit from the rich through the investments and charity, than through reducing the difference between rich and poor through taxation.

We meet main theoretical objections to the welfare state:

  1. It forms a dependant relationship between individuals and the state, and thus discourages people from taking responsibility for their fate and assuming a leadership role in society.
  2. Those people, who depend on public money, persuade others in the society not to work, as they are aware that they will only be taxed to support free riders.

And not it’s time to discuss the main practical objections to the welfare state:

1.               It’s hard to define and oblige ‘equal treatment’ through so many different

social centers that the law has to embrace.

2.              The regulatory aspect of the welfare state needs to have a bureaucratic

system that will repress freedom.

  1. It is difficult to determine fairly the conditions under which the individuals

should obtain welfare benefits and to what extent they should do something

in return.

The conception that the law is ideological is contributes a lot into legal scholarship. First of all, it encourages the individuals to gain a more critical view of the law and its role in the society; it makes clear a row of essential social institutions. Secondly, it shows the importance of social and political factors in our understanding of the law. What shapes legality? Non-legal aspects of society, and law, accordingly, influence the society and social changes. And it happens not only with the help of obvious effects of particular judgments, but also in the political culture that is produced due to the legal system.

Though regarding law as ideological can bring unripe and false understanding of the relation between power and legality, where law is used only to present the interests of the powerful and where legal guarantees are mere promises that are never kept. Moreover, it can cause cynical thoughts about the law and thus it will be the first step towards the destroying of the law, not only on paper, but also in the minds of individuals.

The cynicism of the ideology view is some kind of utopianism about law, for it contradicts the conception of legal ideology. Then, how can the conception of ideology be used in legal scholarship? Actually, more delicate critiques of ideology hold the space where liberation and manipulation can be included in the law. Here we may recollect the conception of Marx and Engels, where ideology gives the distorted image of reality, but still a recognizable one. This proposes that the ideas of legality are not a puzzle, but have examples in law, though probably in partial and incomplete form. The Marxist historian E.P. Thompson said ‘in order for law to function as ideology, it must proffer some genuine moral value’. (1979)

To understand what is meant here we should think how someone’s cruelty can be hidden under polite manners; it doesn’t show that good manners worth nothing. Legal ideology can also might smooth injustice in ways that nevertheless serve justice. Ideology cannot lack lib aspects; if law defends justice, equality and freedom then it must be good at understanding these ideas, maybe imperfectly, but in a way that helps the law to function as ideology. Thus we will be able to appreciate legal guarantees as the genuine protection.

Moreover, realizing of the ideological role of law doesn’t need to deny other conceptions of how law must be defined or understood. Certainly this is so if we become aware of the unlikeliness of removing the ideological modes of understanding. An idea of law, having a moral basic, is able not to depend on a practical appraisal of law’s ideological function. Thus both positivists and natural lawyers, if they do not insist that their ideas and conceptions of law are complete and detailed, can allow the impact of ideology, even when the interpretations are more radical.

So law can be ideology as well as any other moral or institutional idea; though probably law will not be successful as ideology unless it is a multi-dimensional.

References:

  1. Devine J., Retrieved from: http://www.marxmail.org/faq/ltv.htm
  2. Pashukanis E., 1932, The Marxist Theory of State and Law, Retrieved from: http://www.marxists.org/archive/pashukanis/1932/xx/state.htm
  3. Abbott T., 2007, Social theory of law, Retrieved from:
  4. http://www.warwick.ac.uk/~sysdt/Stlaw2004-08.htm
  5. Kreis S., 2000, The History Guide: Karl Marx, Retrieved from: http://www.historyguide.org/intellect/marx.html
  6. Lipkin J.R., 1998, Legal Naturalism: A Marxist Theory of Law, Retrieved from: http://findarticles.com/p/articles/mi_m2346/is_n428_v107/ai_21248812
  7. Sypnovich C., 2001, Law and Ideology, Retrieved from: http://plato.stanford.edu/entries/law-ideology/
  8. Balibar E, 1995, The Philosophy of Marx. Verso (French edition: La philosophie de Marx, La Découverte, Repères, 1991)
  9. Hodge B., Coronado G., 2004, Speculations on a Marxist theory of the Virtual Revolution, Retrieved from: http://journal.fibreculture.org/issue5/hodge_coronado.html