INTRODUCTION

Karl Marx provides a perspective about what the law means, which in order to

appreciate, is important to place it within Marx’s overall socio-economic and political

context1. In the Marxist view of law, the bourgeoisie and the proletariat are the two classes

fighting for power. Societies that allow and give freedom to the bourgeoisie to formulate laws

and make moral decisions are unjust societies. In the Communist Manifesto, Marx explains

that the law is simply a reflection of the desires of the Bourgeoisie class. He says to the

Bourgeoisie that “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 economic conditions of

existence of your class”2. Marx criticizes the entire tradition of government under the rule of

law as no more than a mere expression of the “bourgeois” aspirations.

Legal theorists either have a normative focus on law or a sociological one. If we approach

law as a set of principles which inform the interpretation of a rule, our approach is normative.

The sociological approach enquires into the way the law fits into the society in which it

functions.

We may analyze how effective or ineffective a particular law is; who is its beneficiary and

who is the loser; why are crimes committed; and what are the social backgrounds of

offenders? Karl Marx (1818-83) is not interested in both these approaches. He is concerned

with the social context in which the answer to the question of whether or not one legal rule is

more adequate than the other.

1
Karl Marx and Frederick Engels, Collected Works, 40 vols. (New York, NY: International Publishers, 1976),
6:494–5
2
Legaltutors.com ‘Karl Marx’
MARXIST THEORY OF LAW

Marx’s ideas about law were expressed mainly in the Communist Manifesto and On

the Jewish Question which he published in collaboration with his friend Friedrich Engels in

1848. In Marxist thought, material relations of production (economy) constitute the base,

which determines the superstructure such as politics, religion, education, culture and law.

Capitalism is inconsistent with our species-being, because it alienates us from labor, our

production and from each other. The class conflict to which this leads will eventually lead to

the demise of capitalism. To avoid this, capitalist relations of production need to be regulated,

and this is the main task of the superstructure3. One way of viewing the relationship between

the economic base and law (as an element of superstructure) is instrumentalist. In simple

words, according to this view, the law means the oppression and domination of the proletariat

by the ruling class (the bourgeoisie). The latter has stronghold on the State and its law and

uses it to promote its interests. It is on the basis of this that, according to Marx, law is present

in all phases of class domination prior to the proletariat revolution but not to carry equal

emphasis in all stages of development. Thus law is perceived as having a relatively minor

role in the phase of feudal domination but started to make its role more prominent during the

bourgeoisie phase, because of its least close relationship with institutions of private property4.

As Fredrich Engels said:

“…law is sacred to the bourgeoisies, for it… enacted …for his benefit… because the

English bourgeoisies finds himself reproduced in his law… the policeman’s truncheon… has

for him a… soothing power. But… the working man knows… that the law is a rod which the

3
J.E. Penner and E. Melissaris, “McCoubrey & White’s Textbook on Jurisprudence”, Oxford University Press 5th
Edition
4
J.E. Penner and E. Melissaris, “McCoubrey & White’s Textbook on Jurisprudence”, Oxford University Press 5th
Edition
bourgeoisie has prepared for him; and when he is not compelled to do so he never appeals to

the law.” 5

Marx and Engels themselves devoted relatively little attention to law. Marx

concentrated on discrediting the illusion that law is a human intervention, or, as he put it,

matter of “mere will”. Jurists tell us, he says, that individuals can choose to enter into

relations with others through making contracts and that the content of these relations rest

purely on the individual free will of the contracting parties”. But in fact, neither the general

nor the private will can determine the existence of property, and legal titles as such are

meaningless since the legal owner who cannot command the capital to cultivate his land

really “owns nothing as a landed proprietor”.

The true nature of law can be grasped only by recognizing its link with the state.

Because the ruling class declares itself by setting up institutions that constitute the state, it is

supposed that law rests on will, “indeed on the will divorced from its real basis – on free

will”. But in reality the law, like all political institutions, is an instrument through which the

ruling class exercises its power to satisfy its selfish interests. What the bourgeoisie describe

as the freedom to make legal arrangements is not only the reflections of the forms of relations

in production at any particular time, nor does the belief that law presupposes equality, a belief

promoted by the ruling class to correlate with any reality because law arises from the

dominance of one class over the others. Although law makes it possible for the “personal

rule” of the dominant class, it is nothing but the expression of the will, that is to say, the

common interests of the ruling class.

5
Fredrich Engels and Karl Marx, “Collected Works” (London: Lawrence and Wishart, 1975) pg 514
THE THREE ASSUMPTIONS OF MARXIST THEORY

Basic Assumptions in the Marxist Theories of Law There are three basic assumptions in

the Marxist theories of law. The first one is that law is the product of economic forces.

According to Karl Marx, the way of your work will determine your law and other institutions.

He believed in the ‘two level model’ in which economy was the base and law as well as other

institutions were in the super-structure. Marx thought that the most important domain of

social relations to consider were the relations of economic production. Marx in 1904 stated

the following: Legal relations as well as forms of the State could neither be understood by

themselves, nor explained by the so-called progress of the human mind, but they are rooted in

the material conditions of life.

… With the change of the economic foundation the entire immense superstructure is more of

less rapidly transformed (p. 11). According to this view, law seems to be nothing more than a

function of the economy without any independent existence. Engels, however, admitted that

the various components of the superstructure, including the norms and institutions of the law,

exercise a reciprocal effect upon the economic basis and may, within certain limits, modify it

(Engels, 1890). Thus, if we understood the way in which societies produced and reproduced

the basic goods and services which constituted their wealth, then we could understand much

of the other things going on in those societies. It would be helpful to explain their

characteristic religious, political, moral, artistic, and legal principles. He believed that in a

capitalist economy the working classes or proletarian were exploited by the capitalist class or

the bourgeois. He argued that every society will start with capitalism and initially both the

bourgeois and the proletarian will be happy as the capitalist will get huge profits and the

proletarian will be getting salaries. However, in the second stage, capitalism will collapse

because to be able to compete small corporations will merge into big conglomerates. These

big corporations, in order to compete, will reduce production prices and consequently lay off
most of the workers. As a result, some capitalists will go bankrupt and a great number of

proletarians will become jobless. These will join those proletarians who had no job from the

beginning.

There will be a lot of resentment and protests in the society. Marx calls it the ‘internal

contradictions in capitalism’. He thought that capitalism would initially provide wealth for all

but, as it matured, would provide less and less for fewer and fewer. He believed that

capitalism would encounter the unavoidable crisis. The only alternative system in which

workers will have greater control over the means of production is socialism. For Karl Marx,

law plays a very bad role in a capitalist society especially the law of ownership of private

property and assets. In socialism, all the properties will be owned by the state and the

working class will work in their capacity and will be given everything according to their

needs. He believed that true human freedom was only possible if people obtained real control

over their working environment. Therefore, the progress to the ideals of freedom and justice

that Marx embraced was, he felt, only possible via progress to the sort of material control

over working life that he envisaged. According to this view, law does not have any

independent existence and is only a function of the economy. Marx was convinced that the

society should distribute its goods according to the principle of ‘from each according to his

ability, to each according to his needs [Jeder nach seinen Fähigkeiten, jedem nach seinen

Bedürfnissen]’ (This is the original German ).

Once society has changed to Communism, it will produce enough goods and services so that

everyone's needs can be satisfied . The phrase, though commonly attributed to Marx, he was

not the first to use it. This phrase was used by socialist philosophers. Louis Blanc first used it

in 1839 and Morelly in 1755 Code of Nature. The second important doctrine of the Marxian

theory of law is the doctrine of the class character of law. According to Marx and Engels

(1820-95), law is considered to be the tool of the ruling class to maintain its powers over the
ruled. Law is characterized as an expression of class will. In 1918, a Soviet philosopher

Stuchka, (1951) defined law as “a system of social relations which corresponds to the

interests of the dominant class and is safeguarded by the organized force of that class” (p.

20). This definition became official in 1919 when it was incorporated into a statute.

It was reconfirmed 20 years later by the then Attorney General of the USSR, Andrei

Vyshinsky, by describing law as a system of norms designed “to guard, secure, and develop

social relationships and social orders advantageous and agreeable to the dominant class.”

(Vyshinskiĭ, Babb, & Hazard, 1948, p. 50). Law was seen as the will of the working class. In

the first stage in the USSR, the dominant class was identified as the working class, which was

the majority of the people. This was considered as a historical necessity for the dictatorship of

the proletarian. The USSR was called a proletarian dictatorship. At the time of President

Nikita Khrushchew, it was claimed that the USSR had become the state of all the people, and

that Soviet law had merged with the general will of the people. In the words of two leading

academicians, Ioffe, & Shargorodskii, (1963): Soviet law, subsequent to the disappearance of

the historical necessity for the dictatorship of the proletariat in our country, now constitutes

the expression of a unified will of the entire people, and the will of the working class and the

laboring masses under its leadership, as was formerly the case (p. 4). Law was viewed as the

expression of a unified will of all the people of the USSR. However, this is not supported by

Marxism but is the idea of Jean Jacques Rousseau – the bourgeois philosopher. The third

doctrine attributed to Marx and Engels is what is known as the ‘withering away’ of law in the

future communist society. There is some controversy about this doctrine. Engels predicted

that the society of the future would substitute the administration of things for the government

of persons and that state in such a society would wither away (Engels, Dutt, & Burns, 1934).

This does not specifically refer to law and the capitalist state would wither away. The

‘withering away’ phenomenon was expounded by Eugene Pashukanis (Bodenheimer, 1962).

producers and owners of commodities exchange their products by means of contracts and

transactions. He believed that law was out of place in a socialist society characterized by a

unity of social purpose. He maintained that legal rules for settling disputes between

individuals and groups would not be needed in a socialist society. Consequently, according to

this view, when classes disappear after the revolution, there is no need for a legal apparatus in

which to experience class-rule. So that poverty and exploitation, seen as the root causes of a

crime, will vanish within the new classless society and people will develop into ‘group

creatures’ having no need for codes and rules so that the need for institutionalized law

vanishes. Vyshinsky considered it necessary to retain law as an administrative law as a means

of regulating social relationships. Pashukanis treated ‘all law as bourgeois law and viewed

Soviet law as a relic of the former bourgeois state. This idea has since been repudiated and a

novel concept evolved that of ‘socialist legality’. Law is needed as an instrument for

constructing the new society. In different communist countries, either the first or the second

of the words in ‘socialist legality’ has been stressed. Sometimes it is insisted that our legality

is ‘socialist’, i.e. that it has nothing to do with the bourgeois concept of the rule of law. At

other times it is urged that socialist administration insists on ‘legality’, i.e. the strict

observance of the law by citizenry and even party officials

SUMMARY AND CRITICISM OF MARXIST THEORY OF LAW

Marxism is what is known as conflict theory because it states the conflict between people

in the society. It is a combination of critiques, political goals and theories scattered around

the theories of criticism of Karl Marx. Karl Marx provides a perspective about what the law

means, which in order to appreciate, is important to place it within Marx’s overall socio-

economic and political context.

power. Societies that allow and give freedom to the bourgeoisie to formulate laws and make

moral decisions are unjust societies. Marx explains that law, along with the whole state

apparatus exists only for the sake of private property. Law will wither away in the future

communist society which is characterized by unity of social purpose. Legal rules for settling

disputes between individuals and groups will not be needed in a socialist society.

Within the instrumental perspective, the state and legal system are seen to focus on the

interests of the dominant class. The state is not a representation of any collective good or

impartiality. For Marx, equally, the justice that we observe in liberal societies is just another

aspect of the ideology of capitalism. It focuses minimally on how goods might be distributed

and ignores the massive inequalities implicit in the production process itself. Marx defined

the state and all its laws as mere instruments of class oppression, which would have to

disappear when the final stage of human evolution were finally accomplished.

Marxist theory is best understood in its historical context – as an observation on the nature of

law, as it existed in the nineteenth century under capitalism. Unfortunately, most predictions

of Marx and Engels were wrong.

These included the prediction that every society will start with capitalism; that there will be

crisis in capitalism between the capitalists and the working class; that there will be mass

unemployment during the mature stage of capitalism which will lead to mass protest and the

society will eventually decide in favour of socialism; that socialism will eventually lead into

communism; that law will disappear in the future communist society and so on.

CONCLUSION
To sum up, we can safely argue that the Marxian view of law is influenced by his over-all

theory of state and social change. Marx regards law as a part of the superstructure. Since state

is an instrument of class rule, law is made to serve the interest of ruling classes and thus an

arena of class struggle. The claim made in excessive optimism that laws are made in the

general interest of the public, according to Marx, is only an ideological smokescreen to

ensure its obedience by all.

REFERENCES

Bodenheimer, E. (1962). Jurisprudence: The Philosophy and Method of the Law. Edgar

Bodenheimer. Harvard University Press.

DAWN (2013). Revisiting annulled land reforms. [Online] Available at:

https://www.dawn.com/news/1020297/revisiting-annulled-land-reforms

Engels, F. (1890). Letter to Conrad Schmidt. October, 27, 494.

Engels, F., Dutt, C. P., & Burns, E. (1934). Herr Eugen Dühring's Revolution in Science

(Anti-Dühring). Co-operative Publishing Society of Foreign Workers in the USSR. Gregory,

Y. T. (1996). Random house dictionary of popular proverbs and sayings.

Hussain, E. (2010). Military agency, politics and the state: The case of Pakistan (Doctoral

dissertation).

Ioffe, O. S., & Shargorodskii, M. D. (1963). The Significance of General Definitions in the

Study of Problems of Law and Socialist Legality. Soviet Law and Government, 2(2), 3-10.

Marx, K. (1904). A contribution to the critique of political economy, trans. NI Stone.

Chicago: Charles H. Kerr.. 1963. Early writings.

Qazalbash Waqf v. Chief Land Commissioner, PLD 1990 SC 99.

Doctrine of Law.

Vyshinskiĭ, A. I., Babb, H. W., & Hazard, J. N. (1948). The law of the Soviet state.

Macmillan.

Walicki, A. (1997). Marxism and the Leap to the Kingdom of Freedom: the Rise and fall of

the Communist Utopia.