Jurisprudence and Legal Theory

Marxism

Prof: MOHAMMAD MEHMOOD AHMAD

Compiled By: Muhammad Raees Malik

University of London

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Communism: communal ownership

Capitalism: private ownership

MARXISM:
Introduction:

Marxism is a system of sociology, a philosophy of man and society as a political

doctrine. Marxism is based on the writings of Karl Marx in cooperation with Engels.
Marx summarized the pattern of his intellectual development in the famous preface to
“A Critique of Political Economy”. Marx developed a critique of society which he
claimed was both scientific and revolutionary Marx viewed human societies as
systems in which the most important part was the economic system. The economic
system was the base or infrastructure and everything else political institutions, laws,
religions and ethics was super structural. The critical point was that Marx saw societies
as inherently unstable with social change emerging from internal contradictions and
conflicts in the social systems.

1. Karl Marx is known as the father of theory of communism. Initially, Marx was
influenced by Engles, an industrialist who supported Marx number of times.
Engles looked at the working class very closely and felt very bad about it. He
was a humanist and underwent number of things in order to ensure betterment
of working class.

2. Stephan Pratt stated that we are 2% in the world who are privileged. We have
a big debt to look towards other, those are the poor people. Marx was influenced
by the writing of Hegel and during his time the legal philosophy was dominated
by Hegel. Marx gave a philosophy of how people behave or how they should

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 behave. Marx held that understanding of juris demands more than a static
analysis and it must encompass study of nature of law within an unstable
society.

3. Marx stated in his theory that there is a capitalism that is prevailing and
capitalism is a free market with private ownership concept. Marx categorized
capitalism as an oxymoron although capitalism’s definition is free market and
this market is only available for the rich. Basically Marx wanted to bring in
communism i.e. a classless society, meaning all have equal wealth and
everything is owned by the state. In “A Critique of Political Economy” Marx
stated that neither legal relation nor political forms could be comprehended
whether by themselves or on the basis of general development of human mind,
but that on the contrary they originate in the material conditions of life i.e.
economy.

4. Marx brings in the concept of “Dialectics” which is the basis of his theory.
This is a union of opposites. The current state is called “thesis” and non-
current stated is called “anti-thesis”. The union of these two is known as
“synthesis” for example in Pakistan democracy is thesis and dictatorship is
anti-thesis. There is a struggle prevailing between the two opposite or dialects.
Marx stated that good days do not remain forever, if thesis is wealthy and anti-
thesis is poor then after a passage of time it will be vice versa. Since both thesis
and anti-thesis are in a constant struggle it is better to adopt a middle course
synthesis but Marx stated that this synthesis is very short-lived and it is
something you cannot identify very easily.
Status quo --------------------------------- Thesis
In Struggle ----------------------------------Anti-Thesis
Union----------------------------------------- Synthesis

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 As per Marx every society is in a constant state of flux, the thesis is always
challenged by the opposite force, for example in modern ear; democracy is
always challenged by dictatorship.

5. Difference between Marx and Hegel

The concept of dialectics predates. Marx was influenced by Hegel who
introduced this concept. For Hegel world history was a dialectic unfolding of
political ideas which culminated in the achievement by humanity of a full
understanding of the world. For Hegel law is to be understood in terms of the
development of the human mind but Marx stated that in fact law should be
understood by material conditions of human life. For Marx you need to
analyze the economy and economic agenda. Analysis of social economy
means looking at means of production i.e. how a social wealth is created, this
is fundamental to our understanding of the society.

Hegel stated that ideas shape the society and the world which includes
ethics, religion, and the most important thing is idea. The one who has the
idea can rule the world. Marx on the other hand commented that when Hegel
was speaking of ideas as forming the base he was standing on his head.
Marx stated that at the basis is the economy / money and not the idea. If you
have the money and means of production you have the world and if you do
not have then you cannot have anything. For Hegel, super structure is
governed by idea. For Marx, super structure is governed by money.

Opinion: Marx stands correct on the stance that money is as the base of the
economic structure. However there must be an idea. As for Hegel stance,
there is no point of an idea if there are no means to implement it. Likewise,
unless there is no idea, money cannot help flourish the economy. Hence both
money and idea lie at the base. (Interdependent)

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Analysis: According to Marx if laborer is not paid in terms of what value the
laborer has added to raw material and gets only cost of production. Whereas
the surplus is protected by factory owner.

Law: Are laws run by money? According to Marx, laws are for the rich and
the ruling class and laws are influenced by money. Example B.A requirement
for contesting elections in Pakistan, poor have no access to education and by
introducing this requirement you are further restricting the lower class
participation in politics. Another example is Tax exemption laws also benefit
the bigger enterprise and economic organization. Laws such as; do not steal
[Property offence], Protest the resources of the rich. Minimum wage for
workers law, Prima facie it looks as a benefit to the poor class but in practical
terms this wage is not proportionate to inflation. In Pakistan, the case like
Shah Rukh Jatoi, Raymond Davis and Arsalan Iftikhar are the sufficient
example of the fact that the law are only binding the poor and favors the rich
[No legal aid in Pakistan], [Diplomatic immunities], [Jail categories A,B,C].

Politics: Nowadays politics is highly dependent upon money since

expenditure and costs of elections are very high. In international framework,
Saudi Arabia and other gulf countries influence the global politics because of
their wealth. The bargain power of the developed countries is more than that
of the underdeveloped.

Education and Religion: Education now become highly expensive and out of
the reach of the poor. For example in Pakistan, private sector is highly
expensive while government education sector is cheap but it is mal organized
and lacked necessary facilities. There are compulsory primary education
schemes in different countries but they are only restricted to grade five level.

Marx stated that religion is the opium for the masses and rich are using the
religion to rule the poor. Also, if a person does not have money no religious

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 obligations be performed. For example, Zakat, Hajj, etc. Marx in his book
stated that “Religion is the sign of the oppressed creatures, the heart of
heartless world and soulless conditions. It is the opium of the people.”

6. Marx identified 5 basic changes in the mode of production.

i. Primitive community
ii. Slave state
iii. Feudal state
iv. Capitalism
v. Socialism

7. Levels of Marxism:
There are three levels of Marxism:
i. Level 1 ----------Describes law as an operation of capitalism
ii. Level 2 ---------- Gives devastating critic of domination, capitalism and
exploitation.
iii. Level 3-----------Provides for a political manifesto and a call for a
revolutionary consciousness.

Marx said we need to look at economic organization in order to make a better

sense of society. For example look at the feudal society of medieval Europe
and even in Sindh and FATA in Pakistan where there is a power to possess
land and peasants and farmers and tied to land of their masters and there exists
a sense of alienation in poor and they remained stagnant.

8. Marx in his book “Das Kapital” closely studied factory Acts (minimum wage
and working hours), by this legislation a limit and fixation of working hours for
the laborer came. It did not sound good to the mill owner but good for workers.
Marx said that this legislation was passed because the working class organized
itself into unions and was able to course the state to make laws in their favor.
Simply speaking law worked as an instrument or tool to protect anybody who
can coerce or force. He said that function of law is to reproduce capitalism as

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 a mode of production. So the regulated working hours preserve the fitness and
productivity of the laborers which ultimately benefits the capitalist and merchant
class.

Marx focuses on capitalism as an unequal mode of production and inequality is

a fundamental aspect of capitalism which needs to be changed through
dialectical struggles (Trickledown effect).

9. Classes: Marx said state falls into the hands of those who can own private
property and they are known as Bourgeoisie (Upper-Mille to Upper Class).
These are individuals who provide services, they identify themselves as
capitalist and uphold their interests. Bourgeoisie organize themselves to take
over the state and hence, the state serves interests of the Bourgeoisie. The law
becomes an expression of the Bourgeoisie’s power, and they in order to
maintain their position suppresses the peasantry or proletarian (lower cas es).
The Bourgeoisie rules the Proletariat. Proletariat consists of workers who have
to sell their labor power in order to survive.

10. Marx said that the superstructure is of the Bourgeoisie and they are using
the base to control the superstructure. A class struggle is an ongoing
phenomena (society is in a state of flux). Thesis is bourgeoisie and anti-thesis
is proletariat and they are constantly in phase of struggle. For Marx it is better
to have one society with no class levels and no struggle between the classes.
Marx said that the disparity of income or gap between the rich and poor is too
wide. The middle class exists between them but one day this disparity will
exceed to such an extent that the middle class will not exist anymore and only
extremely rich and extremely poor are left behind (polarization of classes).

11. The bourgeoisie are mystifying the proletariat into thinking that
developments in the fields of laws, politics, education etc. are all for their
benefits as well. But in reality the laws are made in a way which ultimately

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 ensure the betterment of the elite class and not the poor class. For example
Minimum wage laws, P5-veto, super powers are custodians of rights but are
not human right violators, rich does everything for his interest but tries to tell the
poor that it is for them. Refugee crises-where was UN then, USA also save their
own purpose but are wearing clothes of humanitarians e.g. US war in
Afghanistan.

12. Marx also talked to sense of alienation. Poor work in the fields of rich people
but at the end of the day they get a minimal reward so poor are being realized
of alienation from the property of the elite. So it is the rich which developed and
convinced the poor in believing that they will acquire some minimal wage at the
end and alienated from the land. There are two aspects of alienation:
i. Labor which produces surplus.
ii. Capitalism also forces the laborer to become alienated and eventually
synthesis into socialism.

This divide alienation of the proletariat and their exploitation by capitalist form
the basis of contradiction of capitalism which produces social change.

13. Marx also said that the lower class is competing with technology. He said that
a time will come when technology will replace labor for example 1 tractor = labor
of 7. A day will come when disparity increases to such an extent that middle
class will be ruled out and technology will adversely affect poor. Technology
may result in the reduction of labor and unemployment of the poor and it is
feared that the technology replaced workers which may prove to be of adverse
effect on the poor. For example in Pakistan by the introduction of technology in
agriculture sector the unemployment of poor may be seen. EU free movement
of workers. Art.45.

Criticism: Marx can be criticized for his vision is very restricted and in reality
the betterment of society is associated with technology and history is the
witness of the fact that many countries by making progress in technology

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 enhanced economy and ultimately improves lower class lifestyle by the
introduction of job creation and better economic prospects.

14. Historical Materialism: It is difference between the “have” and “have not”
meaning by poor is poor and rich is rich and a class system exists.

Have----------Rich Have not----------Poor

So those who have, exploit those who have not. For example in relation to
mortgage agreements a mortgager with less bargaining power is being
exploited by the mortgagee. So freedom of a contract is a breach but it can be
countered by the fact that there exists a doctrine of clogs and fetters on
redemption in this regard which saves mortgager from being exploited.

Cohan: in his article stated that it is the superstructure that controls the base
and not the base controlling the superstructure. If no superstructure, then
society is not maintained and regulated and no money base may be left. By the
non-participation of superstructure mismanagement, terrorism anarchy will turn
the society in its worst form. For example Hosni Mubarak in Egypt had to leave
his office as superstructure was not properly maintained. Qaddafi dictatorial
regime. Iran revolution, although the Govt. was very wealthy, the superstructure
was not properly maintained which resulted in end of liberalism and beginning
of Islamism in Iran.

It may be safe to conclude that the base and superstructure are interlinked and
interdependent. They exist in compliment with each other and not in isolation.
According to Marx Law as a tool for the capitalist to ensure their supremacy
over the lower classes it has a direct relationship until their economy and can
be used to perpetuate ideology. Marx Class Struggle: Marx said that classes
exist in a society and due to their existence a class struggle exists. For him
there should be classless society. At Marx’s time only economic struggle

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 between classless existed but now the struggle exists on the basis of religion,
gender, caste, creed and color. For Example, strategically Turkey is in Europe
but being a Muslim country, it is not included in law struggle.

15. Solution by Marx: Marx predicted that eventually a political struggle will occur
as a result of conflict of interest between the polarized classes. Marx said that
capitalism is pen-ultimate (second last) stage, the next phase would be
communism.

Marx holds that state and law are a temporary phenomenon after constant
oppression and awareness a revolution is inevitable, resulting in abolition of
classes and power of state, would disappear and according to him end result
of that is refusal to exist as “differential organism”. According to Marx the class
system should be abolished and if poor do not stand for their rights then they
would be completely overrun by technology and if you tolerate this your children
will be next. He gave a solution that poor should stand against the ruling class
and the revolution must be a peaceful one. But Marx can be criticized as a
revolution can never be peaceful and since you are driving against the forc e,
hindrance and bloodshed is certain. Example is Pakistan Movement, Russian
revolution TSARS, French revolution, Iranian and Turkish revolution.

As per Marx super structure consists of all other kinds of activities including
politics religion, art, science etc. while mode of production is referred as
economic base. Economic base shape the super structure and any change in
the superstructure will have an effect on economy of society. It will cause an
economic stir. This is what Marxist thought label as ideology.
MODERN

16. Versions /Forms/Models/Examples of Marxism in theory: (Exploitation in

three ways)

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 small paragraph to quote these three types

i. Instrumentalism: Marx said that law is an essential element in any

social and political society and power relation can be understood in
terms of access to resources. The law is used as an instrument by the
person who have resources against those who do not have it. A France
says that there is a majestic equality of the law which forbids both the
rich and poor to sleep under bridges and not steal bread.

a. Class instrumentalism: Law is an instrument in oppressing the

lower social classes, and a conflict model of social development is
more appropriate to explain change.

b. Economic Determinism: Laws are not simply an instrument of class

domination, a tool of ruling class, but as a phenomenon produced
and reproduced by the most important most important driving forces
for socio political cultural changes in a society.

ii. Structural Marxism: The structuralistic prospective of Marxism takes

the position that the institution of a state of functions in a way so as to
ensure the ongoing viability of capitalism and society cannot be seen in
term of the interests of a particular class. Marxism see racism to serve
the interests of capitalism i.e. in England, on the face of it make
immigration laws that allow people of other races, Pakistanis, Indians,
Sri Lankans etc. to settle in England, but stratify them in a particular
community i.e. shopkeepers, vendors etc. and make it
difficult/impossible for them to own property get education etc. as
opposed to members of the E.U etc.

iii. Humanist Marxism: This is a branch of Marxism that primarily focuses

on Marx’s earlier and for humanist Marxism, the rule of law is about

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 human achievements, political struggle and cultural valves. Accordingly
to this type, men make their own history.

17. Followers of Marxism:

Neo Marxism is a term referred for various 20th century approaches that
amend or extend the Marxist theory usually by incorporating elements from
other intellectual traditions. For example In Pakistan Bhutto Reforms can be
called neo Marxism.

1. Lenin: Lenin known as the father of communism in Russia. In 1917, USSR was
formed as a result of successful socialist movement. Lenin put forward soviet
Marxism and new form of socialist justice was implemented in Russia which
was led by Lenin. Lenin agreed with Marx that law was an instrument of the
ruling class so it has to be removed and socialist state has to be put in place.
For Lenin law cannot achieve equality unless there is communal ownership of
means of production. (Gradual reforms, trickledown effect). So Bourgeoisie
only reflects private property ownership and this elite class must be abolished
in it’s entirely and bourgeoisies law be swept away to the extent that relates to
private ownership, socialism will convert private property into common property.
So Approach by Lenin can be sensible as there will be a gradual approach in
throwing out bourgeoisie law altogether soviet Marxism concerns application of
Marxism in soviet own, to see whether it was manifestly misconceived as
wrongful appropriation of Marx thought. Lenin established Soviet Union and
developed upon Marxism called Leninism. This viewed law as a superstructure
in the base and superstructure model of society Marx is not in line with Art 6 of
Pakistani constitution.

2. E. Pashukanis: he was also a Russian, his theory deals with what happen after
there has been a revaluation and his theory is different from what Marx said
himself. Pashukanis stated that laws are series of contract and at the end of the

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 day market is commodity driven, whosoever has better commodity, resources,
will have a better say in the market. Procedural law are there to facilitate the
commodity exchange and capitalism ensures that foods are freely exchanged.
For example wills and contract laws. For Pashukanis if you are poor then law
is not interested in protecting you and by making law a state is making a
contract with you. Capitalism law was a tool of bourgeoisie domination and a
reflection of their values. Since law was a tool to maintain class domination, in
classless society, law would inevitably disappear.

Analysis:

Pashukanis can be countered by considering the following example such as

human rights, and Islamic law are not commodity driven. But in relation of
international law it is commodity driven and powerful states have a better say
in the market. Pashukanis said that law is blind towards substantive content of
agreements and only looks at procedural equality. For example, bank does not
look at the substance of a contract and they often exploit lower bargaining
power of the poor. But the doctrines of clog and fitter, duress, undue influences,
illegality, competition laws are present to facilitate the poor. So Pashukanis may
be wrong since law is not completely blind towards poor and no doubt law also
has not equal approach towards bourgeoisie proletariat.

3. L. Althusser: he was a French Marxist Philosopher. He poses the question is

there a different way of reading max? His work is known as reading capital.
Althusser developed the ideas of Marx. He is a structural Marxist and believes
that the state promotes capitalism as a mode of production and institution of a
state function to promote capitalism. He makes a destination between
production, legal, political and ideological superstructure. In economic
production, there is distinction between the objects of production such as land
and agents of production which are human and who own the means of

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 production. Economy and law are inseparable and law is essential in structuring
the economy. So he produced a sophisticated re-reading of Marx that relates
social beings to economy to a more effective way Althusser’s theory of ideology
draws on Marx and Gramsci but also on Frued and Lacon concepts
respectively. These structures of Althusser are both agents of repression and
inevitable. Althusser’s concept of ideology is widely consistent with classical
Marxist theory of class struggle. Althusser was neo Marxist and re-read
Marxism. He argued that at the base of superstructure there is differential
economy.

Criticism of Marxism:

1. Marx urged for a classless society but when no struggle between classes exists
then the motivation and urge to develop submerges and as a result society will
become stagnant. For example, in china, under collective farming scheme,
certain land was given to farmers for farming but results were disastrous as the
research and development and the urge to develop vanished. In Pakistan,
during the Bhutto’s regime nationalization schemes, were introduces, which at
the end of the day failed thereby, placing adverse effects on national economy.

2. Marx urged poor to get up for their rights before completely taken away by
technology and in doing so revolution must be peaceful but in reality bloodshed
and unrest and revolution are hand in glove with each other.

3. Marx urged people to bring revolution but missed out the service sector i.e.
Doctor, Engineer and Lawyers. So he can be criticized that these professional
men are never replaced by technology and in reality the technology is
dependent upon those professionals. It is the human which drives the machine
due to the advancement on technology their economy excelled.

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 4. Marx only talked of economy and stated that the oppression of poor by rich is
only related to money but in reality it is not the case and disparity between rich
and poor exists on the basis of realism, religion, creed, etc.

5. He said that remove all classes and everything must be owned by the state, but
in that scenario too, two classes exist i.e. state and people, state could exploit
now instead of the rich.

Marxism, Law and international Economy:

Marx believed that once a country reaches the top of capitalism there will be a
revolution. But this was not so, communism occurred in countries that were
underdeveloped e.g. China USSR, Cuba Germany, As of 2005, Laos, Vietnam, Cuba,
and the people’s Republic of China had governments in power which describe
themselves as socialist in the Marxist sense. The Laotian and Cuban states
maintained strong control over the means of production. While Marx theorized that
such a socialist phase would eventually give way to a classless society in which the
state essentially ceases to exist and workers collectively own the means of production
(communism), such a development has yet to occur in any historical self-claimed
Socialist state, often due to an initial authoritarian regimes unwillingness to relinquish
the power it gained in revolution.

Whereas the capitalist countries strengthened, grew and developed. In the west there
were more political, economic and social liberties as compared to the communist state.
The communist states were over burdened by stifling bureaucracy and there was
standardization rather than equality. The west simply outperformed the communist
countries. World economy can be seen as a product of the geographical expansion of
western power from the sixteenth century onwards. This process is coupled with a
zoning of the world: a specialization of different areas in the production of materials
and labor for manufacture. In turn, this zoning relates to interactions between colonial

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expansion and economic development along capitalist lines. Hence, these effort s
can discrimination which remains one of the principles underlying the General
Agreement on Tariffs and Trade (GATT).

Moreover, if developing countries want to improve their terms of trade, they have to
give time to give time to their domestic industry to establish themselves in the market.
One such attempt was seen by the introduction of WTO, its purpose is to foster free
trade. Furthermore, in Doha 2001, the Doha Development Agenda (DDA) stressed the
need for developing nation to achieve greater access to world markets, and initiated a
work programmer to push forward the development initiative. The WTO acknowledged
“the particular vulnerability of least developed countries and the special structure
difficulties they face in the global economy.

Islam and Marxism:

Islam has the advantage over Marxism of leaving the economic sphere more or less
alone. And political life is now less a matter of conflict between rustic tribes for who is
to supply the new dynasty and be the next occupant of the capital (for modern military
communications and administrative technology have on the whole weakened the
tribes, give or take a few exceptions like North Yemen), but rather a blend of the tribal
spirit and the great patronage networks, favoured by modern conditions, which now
seem to be the main element in Muslim politics. These patronage networks, which
pervade the political order, maintain internal loyalty rather than a commitment to the
formal institutions within which they fight it out for supremacy; and the wider population
at the same time tends to identify with the faith and expects the political order to make
observance of the faith possible, and indeed to enforce it. Beyond that extent, the
sacred has not entered the political sphere, and no great economic expectations are
aroused. So I would argue that the Ibn Khaldunian world has been perpetuated under
modern conditions, in a curious combination of very sincere and committed faith quite
different from the lukewarm and bowdlerized religion of the West with cynical

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patronage-network politics. This seems to me the basic sketch. So, in the end, we find
in the Muslim case little yearning for civil society but a great commitment to faith,
whereas in the Marxist world we find the opposite. Whether the yearning will prevail
or be thwarted by the absence of the economic preconditions for its success, and
whether the Muslim faith will restrain or, on the contrary, release ruthless clienteles
and occasionally adventurist politics only the future will tell.

Marxist ideas that define the 21st century

1. The concentration and centralization of capital: In his masterpiece Capital,

Marx defined economic reproduction in capitalism and predicted the tendency
to concentrate and centralize capital. While the first aspect refers to the
accumulation of surplus value, the value created over and above the labor
power of workers (surplus labor), appropriated by the capitalist as profit. The
second term consists of the increase in capital as a result of the combination of
several individual capitals, almost always as a result of bankruptcies or
economic crises. The implications of this analysis are devastating for the
defenders of the ability of the “blind hand of the market” to distribute wealth. As
Marx predicted, one of the characteristics of capitalism in the 21st century is
the growing gap between rich and poor. According to Oxfam’s latest report,
82% of the wealth generated worldwide in 2017 went into the pockets of the
richest 1% of the global population, while 3.7 billion people, the poorest half of
the world, saw no increase in their wealth.

2. The instability of capitalism and cyclical crises: The German philosopher

was one of the first to understand that economic crises were not an error of the
capitalist system, but one of its intrinsic characteristics. Even today attempts
are made to peddle a different idea. However, from the Stock Market Crash of
1929, to the crisis of 2007- 2008, there is a clear course that follows the patterns

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 as outlined by Marx. Hence, even Wall Street magnates end up turning to the
pages of Capital to find some answers.

3. Class Struggle: Perhaps one of the most revolutionary Marxist ideas was the
understanding that “The history of all hitherto existing society is the history of
class struggles,” as we read in the Communist Manifesto written by Marx and
Friedrich Engels in 1848. That thesis threw liberal thought into crisis. For Marx,
the capitalist state is one more tool of the hegemonic class to dominate the rest,
while reproducing its values and its own class. A century and a half later, social
struggles are fought between the 1% that dominates and the other 99%.

4. The industrial reserve army: The capitalist, according to Marx, needs to keep
wages low in order to maximize profitability. This can be achieved as long as
there is another worker waiting to take the place of one who refuses to accept
the conditions. That’s who he called the “reserve industrial army.” Although the
social and trade union struggles from the 19th century to the present day have
changed elements of this situation, especially in developed nations, the quest
for low wages continues to be a constant in the business sector. During the
twentieth century, large manufacturing companies in Europe and the United
States relocated to Asia in search of a skilled workforce they could pay less.
Although recent governments point to a loss of jobs through this process, as
the Donald Trump administration in the United States has, the fact is that these
companies managed to maintain their high growth rates thanks to the
exploitation of cheap labor. Regarding wages, current studies show that
workers’ purchasing power, in terms of what can be bought and not their
nominal value, has been decreasing in western countries for nearly 30 years.
And the gap is even greater between executives and low-level employees.
According to an article in The Economist, while in the last two decades workers’
pay in countries like the United States has stagnated, the salary of top
executives has increased significantly: they have gone from earning 40 times
the average pay to pocketing 110 times more.

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5. The negative role of financial capital: While Marx details the mechanisms of
exploitation inherent in the process of capital accumulation, he is especially
critical of financial capital, which does not have a direct material role in the
economy, but is created in a “fictitious” way, such as a promissory note or a
bond. In his day, one couldn’t imagine the modern development of this sector
of the economy, thanks to the use of computers to carry out financial
transactions at the speed of light. Speculation and the elaboration of complex
financial mechanisms – such as the so-called “subprime,” which triggered the
crisis of 2007-2008 – are currently solid confirmation of Marx’s concerns.

6. The creation of false needs: The 19th century had not yet seen the boom of
commercial advertising on radio and television, much less modern mechanisms
to personalize advertising messages on the Internet, but Marx already warned
of the ability of the capitalist system to generate alienation and false needs
among people. “The extension of products and needs becomes a contriving
and ever-calculating subservience to inhuman, sophisticated, unnatural, and
imaginary appetites,” he predicted over 150 years ago. In today’s world, cell
phones become outdated in just a few months, and advertising is responsible
for convincing users to buy the latest model. Meanwhile, household appliances
are built with planned obsolescence to ensure they stop working after a few
years, and thus create the need to replace them.

7. Globalization: “The need of a constantly expanding market for its products

chases the bourgeoisie over the whole surface of the globe. It must nestle
everywhere, settle everywhere, establish connections everywhere,” Marx and
Engels wrote in the Communist Manifesto. Their portrait of the globalization of
markets, accompanied by the imposition of a culture determined by
consumption, could not be more accurate.

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 8. The performance of monopolies: At the same time, this trend is accompanied
by the creation of transnational monopolies. While classical liberal economic
theory assumed that competition would maintain multiplicity of ownership, Marx
went a step further and identified the market’s tendency to amalgamate based
on the law of the strongest. Large media, telephone, and oil conglomerates are
some of the current examples of the process described by Marx.

9. The suicidal tendency of capitalism: “All that is solid melts into air,” is one of
the most enlightened reflections on capitalism in the Communist Manifesto.
Marx and Engels understood the creative and at the same time self-destructive
nature of capitalism, in which the pursuit of productivity at any price imposes an
inhuman rhythm of production and unsustainable consumption. It is precisely
this trend that currently has our planet on the edge of collapse. The impact of
human beings on the rise in global temperature is scientifically proven, although
certain presidents, such as that of the United States, continue to deny it.

10. The revolutionary potential of the working class: Marx’s greatest impact on
history was not his profound analysis of the contradictions of capitalism, but his
call to build a new kind of society: based on communism. His message that the
proletariat has the potential to free itself from oppression and inequality forever
changed the twentieth century and inspired revolutions in Russia, China,
Vietnam, and Cuba, among other countries. His call to working class unity
remains fully valid in the 21st century.

Conclusion: 1

Marx Believed that when a country reached epic (Supreme form of Capitalism) there
is communist revolution. But a revolution occurred in countries which were least
developed and in those countries no epic form of capitalism exists e.g. China, Russia
and Germany. Marx maintained how ruling classes uses the law to impose their own

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ideologies and further their own gains. In Marx opinion class interest lie behind the
struggle of material production. This lead to two prospects, Leave the position
unregulated i.e. law remains in hand of capitalist and there is a call to regulate it
through law.

Conclusion: 2 (book pattern)

Criticism of Marx’s theories take two distinct lines, the first are which quarrel with
Marxian analysis of society and his predictions of what a revolution would achieve.
Secondly, there is the non-applicability of his theories to contemporary society. There
are plenty of other dimensions of social stratification such as gender and race and
other struggles such as ecology and disarmament do not fit into a class theory. Marx’s
view is that such inequality and oppressions is in the interests of capitalism but cannot
form concrete examples to substantiate this point. Also anthropological evidence
shows that private property and institutions such as contract are found in society which
Marx would have regarded as primitive and therefore it is not just a capitalistic
construct. Also changes within the feudalistic system by feudal lords themselves and
not due to class challenges within them i.e. the right to issue voting rights in Pakistan.

Marx also felt that human nature could be changed, simple by changing or society that
we live in, and therefore a shift into socialism was necessary. The problem is that his
assumptions are backed by no credible arguments. Due to our naturally distrustful,
greedy, and ambitious natures, which precede capitalism, humans will not motivate
themselves to do anything unless there is a reward. Their survival instinct won’t let
them Competition isn’t just good for men, it’s necessary. If there were no competition
for the things we need, we would just take them and copulate and nothing else. While
the species might survive, it would not progress, and we can live better. Competing
for resources forces us to establish our identities and do more than just sit there and
exist. Our will to power drives us to accumulate food. Money, and control in order to
maximize our change of survival and reproduction. As long as our nature remains
unchangeable, we will never be able to adjust to life in a Marxist society.

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Marxist view of law is also simplified because law only function is not just to exploit the
working class. Islamic Law is a prime example wherein its tenants are to be followed
not just by the ruling class but also by the proletariat as it’s following is spearheaded
by a higher purpose such as eternal salvation or even morality. Also modern Marxists
would argue that ideological functions of law are as important as its coercive on es. In
addition, laws are there to restrain oppression, i.e. covenants in restraint of trade, labor
laws, antitrust law, anti-monopoly law etc.

Conclusion: 3

Earlier we talked about the reasons for why the laws should wither away under
socialism. But neither of these assumptions seems plausible. First of all, Marxists have
become increasingly aware that the question of who owns the means of production
does not automatically settle the question of whether man’s exploitation of his natural
environment will jeopardize the supply of resources for present and future generations.
In any case, that socialism could result in a great abundance of goods remains to be
proved. Furthermore, even if the elimination of scarcity were possible, it is not at all
clear that conflict would thereby disappear. Marx assumed that all conflict is based on
the division of society into classes, into those who labour, and those who accumulate.
But it is possible that members of a socialist society could still disagree about how
resources are to be mobilized and distributed, even in a context of consensus about
their society’s egalitarian premises. It thus seems conceivable that conflict would
outlive capitalism, and that law would continue to be necessary to mediate conflict.
Thus inconclusive as to the validity of the thesis of the withering away of law. On the
one hand, law’s mystifying role and its connection with capitalist relations of class
domination render law theoretically inconceivable under socialism. On the other hand,
the ideology view reveals positive aspects of law, suggesting that legal institutions
could, like capitalist technology, have a role to play in post-capitalist society. In the
face of the unconvincing assumption that a socialist community would be free of the
conditions of scarcity and conflict which underlie law, there may yet be room for a

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socialist jurisprudence which repudiates the withering away thesis. Legal institutions
of some form may still exist. Suppose that law does not ‘wither away in a socialist or
Communist utopia. Instead legal institutions of some sort remained to mediate social
relations in the absence of either bourgeois egoism or class conflict. Earlier we talked
about the reasons for why the laws should wither away under socialism. But neither of
these assumptions seems plausible. First of all, Marxists have become increasingly
aware that the question of who owns the means of production does not automatically
settle the question of whether man’s exploitation of his natural environment will
jeopardize the supply of resources for present and future generations. In any case,
that socialism could result in a great abundance of goods remains to be proved.
Furthermore, even if the elimination of scarcity were possible, it is not at all clear that
conflict would thereby disappear. Marx assumed that all conflict is based on the
division of society into classes, into those who labour, and those who accumulate. But
it is possible that members of a socialist society could still disagree about how
resources are to be mobilized and distributed, even in a context of consensus about
their society’s egalitarian premises. It thus seems conceivable that conflict would
outlive capitalism, and that law would continue to be necessary to mediate conflict.
Thus inconclusive as to the validity of the thesis of the withering away of law. On the
one hand, law’s mystifying role and its connection with capitalist relations of class
domination render law theoretically inconceivable under socialism. On the other hand,
the ideology view reveals positive aspects of law, suggesting that legal institutions
could, like capitalist technology, have a role to play in post-capitalist society. In the
face of the unconvincing assumption that a socialist community would be free of the
conditions of scarcity and conflict which underlie law, there may yet be room for a
socialist jurisprudence which repudiates the withering away thesis. Marx law, the
problem with Marxist view of law is their limited interest to the role of law in reinforcing
capitalist exploitation. The Marxists have been unable to make any further
contributions to legal theory. They do not consider the role of law might play in a post-
capitalist society and a socialist jurisprudence is virtually non-existent. Socialism may
not necessarily be the next step and that left wing Marxists fail to say how an ideal
socialist society will be governed. Legal institutions of some form may still exist.

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Suppose that law does not ‘wither away in a socialist or Communist utopia. Instead
legal institutions of some sort remained to mediate social relations in the absence of
either bourgeois egoism or class conflict. It may be absurd to believe that any society
can function without law. There will always be problems and issues such as thefts,
sexual assaults, etc. and criminal laws will be needed. In addition, any industrial
society will require rules and regulations governing the organization of the mode of
production. If law is viewed as a means of organizing productive relationships in the
interests of the dominant class, then it could be instrumental for the dictatorship of the
proletariat in the transition to socialism. Many laws in society go beyond class rule, as
for example, the case of enforcement of moral standards such as abortion,
homosexuality, and rape. It is hard to see that these types of situations are a stem of
the instrumental pursuit of their interests by the ruling class. Thus, such rules about
morality may not necessarily wither away entirely after revolution but may be altered.
According to Collins, classic Marxists theorists devoted very little attention to law and
merely focused on it as the apparatus of the state, and so they concluded that when
the bourgeois state was thrown overbroad the law would go too”.

------------------------------------------------End Notes--------------------------------------------------

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Separate Material as per guide pattern

MARXIST THEORIES OF LAW AND STATE

Marx theory:

Marx drew on Hegel’s ideas but was critical about him. For Hegel world history was a
dialectical (logical discussion of ideas) unfolding (speeding out) of political ideas which
culminated (climax maximum) in the achievement by humanity of a full understanding
of the world. Whereas, for Marx law is not to be understood in the terms of the
development of human mind but in fact law should e understood by the material
condition of human life. He says that you have to analyze economy and economic
organization. Marx uses a special term for his analysis of economy; he refers to the
means of production. He is referring to the ways in which people make their living ways
of producing social wealth. For instance, wealth is bound up with land, then those with
land are powerful. Those without land have to work for those with land: one does
indeed find a rural peasantry who were legally tied to the land of their masters. Of
course, there was also a merchant class; merchants had the social and financial power
that comes from trade, and certainly did not have to sell their labor on the land. Marx
argues that your sense of yourself, or your view of the world, is determined by your
material position in society and he refers to these material positions as class positions.
More formally, class is determined by an individual’s relationship to the means of
production.

Marx describes such ideas or beliefs about the world as ‘ideologies’. The ideology of
a peasant will be very different from that of a landowner. A landowner’s view of the
world will be determined by the need to maintain his authority. Another, important
strand of Marx’s ideas of ideology is that it mystifies. Thus, a peasant will ‘believe’ in
the authority of the lord, but will not appreciate that this belief is ultimately based on
no more than the lord’s wealth and power.

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Marx’s model of law:

Marx’s model of law is that law is part of a social structure that is reducible to its
economic organization. So in his work “A critique of Political Economy” Marx looks at
laws relationship with society in terms of base and superstructure. At the base of
foundation is the mode of production, all social institutions can be understood with
respect to this determinant. Because everything is connected, events take place
thorough the interaction of base and superstructure. The material base in society
supports capitalism as part of the superstructure. The superstructure includes an
entire realm of ideas and this includes religion, political thought, ethics and morality
and law.

For Marx the state reflects a particular historical fact that the state has fallen into the
hand of those who control private property called the Bourgeoisie. The bourgeoisie
organizes itself to take over the state and hence the state institutions servers the
interests of bourgeoisie and law becomes the expression of the class power. The
bourgeoisie in order to maintain its class position suppress the peasantry or the
proletariat. Thus, the law reflects the interests of the bourgeoisie; the prevailing ideas
of justice and equality, likewise, will reflect those interests.

The state can be seen as bourgeois in practice as well. The center of state power
according to Mandel (2004), is not the elected representatives but the civil servants.
The police, the judicial system and all other servants of the state who are permanent.
This permanency of centralized power serves the interests of the political class the
bourgeoisie – rather than the working class that is supposedly being represented We
can see this in Britain and the USA, Where the vast majority of elected politicians are
lawyers or other professionals. Even taxation, seen as an instrument of social justice
by means of economic redistribution, becomes a form of political repression. Taxation
is representation for taxpayers, and given that the bourgeois will pay more in taxes
than the working class, and the latter are forced to pay taxes even when they are being

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exploited and perhaps even immiserate by the bourgeoisie. Taxation becomes
representation for the bourgeoisie (Mandel, 2004)

Marx’s theory of law in Das Kapital:

The context for Marx’s historical study of the Factory Acts in Volume 1 Kapital is Marx
is very cynical and said this legislation was passed because the working class
organized itself in unions and was Marx in his book ‘The Communist Manifesto’ states
that modern society is composed of people who own means of production and the
society is divided between the owners of production and proletariat who works for
them. A political struggle will occur as a result of conflict of interests between the
polarized classes of capitalist society. According to him the proletariat will seize power
through revolution and create a new classless society in which the means of
production will be owned in common by the entire community. Hence, social division
of labor by which men performed task will be abolished in everyone would control their
own lives and experience true freedom. So capitalism is the penultimate stage in the
process of history and the next phase would be communism.

Three levels in Marxist theory:

Three much based versions of Marxism as a theoretical perspective can e

distinguished; instrumentalism, structuralism and humanism. Each has different
implications for the analysis of law.

1) Instrumental Marxism:

It is the view of law, state and indeed all of the politics and culture as straight forward
instruments of ruling class. Law may purport of represent justice but this is merely an
ideological disguise for serving as a tool of ruling class, advancing their interests and

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controlling the working class. A France says that there is a majestic equality of the law
which forbids both the rich and poor to sleep under bridges and not steal bread.

Collins distinguishes two ways of regarding the views on law of Marx:

The structuralistic perspective takes the view that institutions of the state must function
in a way so as to ensure the ongoing viability of capitalism. They believe society cannot
be seen straight forwardly in terms of interests of a particular group. The state and the
law are themselves structures that cannot be understood separately from their place
in the overall reproduction of capitalism.

Soviet Marxism and the Law:

Interpretation of Marxism by Lenin: in 1977, the Monarch Zarr was unpopular and
there was Russian revolution. Zarr was removed but not sent to England for exile.
Lenin’s family was executed and shot dead which influenced his writings and a new
form of social justice was achieved in Russia through this.

Lenin agreed with Marx that law was an instrument of the ruling elite and it had to be
removed and a socialist state had to be put in place. Law cannot achieve equality
unless there is communal ownership of the means of production. Bourgeoisie law only
reflects private property ownership and in a communist society bourgeoisie law must
not be abolished in its entirety but bourgeoisie law is swept away to the extent that it
relates to private ownership. Socialism will convert this private property into common
property. There will be a gradual approach in throwing out bourgeoisie law altogether.

Interpretation of Marxism by Pashukanis: Pashukanis addresses what needs to be

done after there is a revolution. His theory is very different form Marx because he
spoke up what needs to be done up until a revolution. Pashukanis believed in the
destruction of private property, communal ownership of resources. Capitalism
presupposes a market, where goods can be freely exchanged. This contracts with

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feudalism. Pashukanis argues that in medieval times, the relationship of subservience
and dominance is not legally articulated:

‘the slave is totally subservient to his master’. In his book A General Theory of Law’
he links bourgeoisie law to market regulation. He fails to answer the question about
how law should operate in a society that has rejected the market. And this is the great
failure of soviet Marxism because it does not talk about the limits that should be on the
law to shape economy and society.

Critique of Soviet Marxism (Althusser):

The most interesting and relevant contemporary form of Marxism are developed by
Althusser who is attempting to update Marx insight to describe modern, Western
capitalism. Althusser is a structuralistic Marxist and his work is called ‘Reading
Kapital’. He believes that the state is in a capitalist mode of production and institutions
of state function to promote capitalism. His view was that Marx account of economy
has been misunderstood. Marx was careful to point out that super structural
development cannot be plotted in the same way as economic change. In other words,
one cannot make a simple link between economic forms like capitalism or feudalism
and forms of law.

He makes a distinction between production and the legal political superstructure. In

economic production there is a distinction between the objects of production which is
the land and the agents of production which are the humans. The agents can be the
laborers who are the direct agents and another group who owns the means of
economy, economy and law are therefore inseparable.

He criticizes instrumentalism by saying that it is too simplistic in describing the

characteristics of social beings in term of the interest of the ruling class. Althusser

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provides certain insights into the production of a new theory of ideology. The Marxist
tradition understand the state as an instrument of the ruling class. He says the
instruments at its disposal are not just the repressive institutions such as the police
and in the emergencies, the army. A full list of the state apparatus is open ended, but
would include religion, education family law, politics etc which are distinguished from
Repressive state apparatus which would include the Government, the Administration,
the Army, the Police, the Court etc. But to call all these “state” powers confuses class
and state power even if it is assumed that the “state is in all res pects the ultimate
sanctioning agency of class power” The dominant class under the protection of the
state has vast resources considerably greater than those of the subordinate classes
to bring its own weight to bear on civil society.

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