Marx-Shal Exam Notes (1).docx

**[Question 8 (20 marks) (Marx)]** ---------------------------------------------- For Marx those who attribute to the law a distinctively 'legalistic rationality' autonomous of other forms of discourse are fetishising the law. Explain what this means and why Marx would hold this view. Is Marx rig...

**[Question 8 (20 marks) (Marx)]** ---------------------------------------------- For Marx those who attribute to the law a distinctively 'legalistic rationality' autonomous of other forms of discourse are fetishising the law. Explain what this means and why Marx would hold this view. Is Marx right? Justify your answer. Q-Marx theory - Marx thought that the law is not an autonomous discourse or phenomenon, the product of a kind of self-contained legal reasoning\... if we have a modern liberal democratic system (?) **[and whether we agree or not with Marx\'s theory and give reasons for it.]** **[Question 5: Marx]** Something about explaining legal autonomy and Marx\'s views on this. **Q10. For Marx law is part of the institutional regulation of class society. At any point in time law will be in the service of the dominant class. It is part of the superstructure and so it reflects at an ideological level the needs of the base. Explain what is meant by this, outline its implications for the law and its autonomy, and assess or evaluate the view (that is, is it correct) with reference to concrete examples that illustrate that Marx's view is correct or incorrect.** \[add Dr Birch comparisons and contrast with realists when talking about CLS scholars\] **INDEX** --------- Theorists on *political spectrum*: - **Robert Nozick**: on the **right** - **Karl Marx**: on the **left** - **John Rawls**: in the **middle** (***Hegelian Rawlsian***) **MARXIST JURISPRUDENCE** ------------------------- **WELFARE LIBERALISM** (*Rawlsianism*) - [Demise of welfare liberalism], particularly in the latter part of the **20th** century.   **NEOLIBERAL CRITICISMS OF WELFARE LIBERALISM** (*Rawlsianism*) - In the **1970s and 1980s**, welfare liberalism was criticized by the right-wing of liberal, leading to its **decline due to the rise of neoliberalism**. **LIBERTARIAN (ROBERT NOZICK) CRITICISMS OF WELFARE LIBERALISM / *Rawlsianism*** *(right wing criticisms*)  - Theoretically, libertarians like Robert Nozick criticize welfare liberalism as a **negation of property rights and self-ownership**, arguing that the **state\'s role should be to protect these rights**. **MARXIST CRITICISM OF WELFARE LIBERALISM / *Rawlsianism*** (*left wing criticism*)  - Criticized by both wings of the political spectrum (right and left). - Also criticized liberal politics [e.g.] viewed **Rawls as conservative individualist and apologist for an unjust status quo**. - \[a part is left out, added a comment in long notes\] - Look, I mean, when I was a student and I was a student sort of in the 90s and we look at Rawls and all we could see is that this is an accommodationist position, right, that is trying, that is facilitating a capitalist status quo by allowing workers to have a moderate share in the prosperity generated by the system. Right. Yet maintaining the power differentials between capital and labour. And that\'s why we viewed Rawls. That\'s true. The downside of my position in the 90s is that if only we remained more like Rawls, things would probably be a bit better today. Oh, he was the father I had to kill, right? - Yes, certainly, but I didn\'t I didn\'t foresee what was around the corner. Hindsight\'s wonderful. Hindsight\'s a wonderful, wonderful thing. Back then, Rawls was just this conservative, I mean, he wasn\'t dead then, he\'s still writing, right, he\'s this conservative old fuddy-duddy who\'s an apologist for the status quo that we wanted to see transformed. - **MARXIST JURISPRUDENCE (I.E. LEFT CRITIQUE OF WELFARE LIBERALISM) ** - Draws out [critical perspective] from Marxist jurisprudence on a broadly liberal Anglo-European world, from about the Declaration of Independence through to today (*250 years or more of liberal democratic political practice*).   - The center-left supports welfare liberalism, but further left, it is seen as an **accommodationist position defending the status quo while making concessions** to labor. [Example]: - Welfare liberalism [ensures that the wages and working conditions for labors are adequate] but [demands high productivity] from workers in exchange of these benefits. **Therefore,** hard left sees welfare liberalism as accommodationist fitting the demands of labor within a capitalist framework.   - Moving further left towards Marxism; welfare liberalism is seen as a **capitalist strategy to appease labor** and **maintain social inequalities** within the capitalist system. **MARXIST CRITIQUE OF WELFARE LIBERALISM / RAWLSIANISM** - Marxists criticize Rawls as an accommodationist. - They view his approach as **offering limited prosperity to labor while maintaining inequalities**. - This was seen to **suppress labor agitation**, bring labor movement down, and **prevent revolutionary threats**. -  Between 1880s and the end of World War 2, **industrialists realized the need to accommodate to quell unrest** within the labor movement and **secure industry and capital**. - This led to the development of 20th century welfare liberalism, particularly influenced by Roosevelt\'s New Deal. **MARXIST THEORY (DEEP DIVE)** - Classical Marxism is best understood through its historical context in the **classical German philosophy**. - So, it is crucial to first explore **German idealism** which influenced Marx's writing. - **Classical German Philosophy - GWF HEGEL IDEALISM** **CLASSICAL GERMAN IDEALISM VS MARXIST MATERIALISM ** - German **idealism is very different to Marxist** materialism i.e. **inverse images of each other** **GWF HEGEL IDEALISM (DEEP DIVE)** - Hegel's idealism posits that **progress intellectual, industrial etc. came from thought**. - Our **thoughts about the world push the world forward** i.e. the advancement in our understanding of the world leads to actions that align more closely with reality. - Hegel\'s philosophy implies that **reality is completely knowable** and there is **nothing is inaccessible to the human mind**.  - Idealism is cognitivist and anti-skeptical asserting our power to understand and grasp reality. - As we deepen our understanding of social, ethical, political and legal facts, the progress in all these realms occurs. - History not only involves the evolution of our understanding of nature but also of society, ethics, politics and law. **[Idealist Dialectical Process]** - According to idealists, we begin with **inadequate understanding of concepts** e.g. the world which **includes inherent contradictions**. - We hold these contradictions in our thought. - As we encounter these contradictions, **we realize our understanding of the world may be wrong because our actions based on certain concepts fail.** - This **pushes us towards** *not perfect,* **but a fresh understanding** of these concepts and the cycle continues until we completely understand world. - Therefore, the dialectical process [involves seemingly adequate theories containing contradictions eventually undermining them, leading to the development of new theories.] - **Hegel believed that this occurs in politics as well.** - Over time, [contradictions inherent in our political conceptions create problems]. They demonstrate the limits of our political understanding [leading to its replacement with new ones]. - According to idealists, same happens with **legal thinking.**   **LAW AS HUMAN PRACTICE ** - Law is a human practice based on **evolving legal theories which develop through inadequate conceptions** and legal practice. - These contradictions lead to **revised understandings** and new legal approach. - The process **continues until legal practice aligns more closely with reality**, according to Hegel and idealists. **HOW HISTORY INFORMS CURRENT THEORY AND FUTURE SYNTHESIS** - Human activities like [politics and law are based on human thought]. - **Understanding the history of these practices** helps in understanding the current ones. - So, if we understand the **problems that past practices were responding to, we will understand that practice better.** - Once, we understand the dynamic, it will allow us to develop [improved legal practices by resolving tensions identified in prior theories]. So, ideas about society, ethics and politics inspire practices and thinking about problems leads to reformation and transformation. Thought and ideas shape practices. Our political ideas shape our views on what is right. **MARXISTS ON HEGEL'S DIALECTIC PROCESS** - The most **direct engagement with reality occurs when we encounter the obstacles**, contradictions, and resistances. - Marxists argue that **Hegel's work is theoretical**, but for Hegel, **engagement with real resistance pushes us to think harder**.  **HEGEL'S HORIZONS** - Hegel's approach is **conservative** i.e. **not beyond liberal democratic constitutional state**. - According to Hegel, achieving the **Westminster system represents the peak of political practice, He calls at the end of history though [it is not the end of historical events]**[.] - [Events continue], but for Hegel, there is no further development beyond a system like Westminster. - People on the left (Marxists) [criticize Hegel as an **apologist for the liberal state**.] - Hegel views historical progress as driven by our evolving understanding with the pinnacle of socio-political and legal ideas found in the liberal democratic system, particularly the Westminster system. **Hegel on distributive justice** - Hegel is **more in agreement with Rawls**. - **Supports regulated markets** to prevent extreme wealth and poverty which can destabilize the system. - Hegel\'s early 1820s political philosophy recognized that unregulated systems lead to extreme wealth and poverty which destabilizes political societies. Thus, regulatory approaches are favored to prevent unrest. - Hegel argues for economic regulation to prevent unrest, but Marxists view him as an accommodationist capitalist because regulation ~~can allow~~ the capitalists to exploit tensions, leading to societal conflicts and collapse of the whole system. - Hegel advocated for regulation as **it balanced out the growth of inequality to achieve stability**.   **Policing to regulate a market** - Hegel believes regulation and policing are essential to ensure fair market. - For Hegel, market policing involves ensuring fair practices like weighing and balancing. - Policing is completely regulatory so that interactions between members of society are fair because without regulation, unfair practices can emerge, benefiting the privileged and exploiting the ones who have not.   - Economist **[Thomas Piketty's] work shows that inequality leads to various social issues**. - His analysis of 250 years of **economic history links inequality to a social pathologies** like low birth weight, increasing alcoholism and drug use, lower education, increased crime, poor health, worse mental health, and more domestic violence. - Hegel's concern more relates to the **social inequality that leads to social unrest, which ultimately destabilizes political systems**. - **Hegel envisions a good society like late 1960s England**, around the time of the Beatles, as an ideal example. **CLASSICAL MARXISM ** ---------------------- - Marx sees Hegel as **elitist** - Marx's philosophy is **antithetical to Hegel's**, seeing him as a father that must be killed. - Marx had a **different view on historical progress**, known as **[materialism]**. - They reject historical idealism and propose **historical materialism**, which argues that **material conditions, [not ideas], drive historical change and progress**. - Ideas are influenced by material changes rather than driving them. - The **key factor** as per Marx, in social change driven by material conditions is the **means of production** i.e. **technologies used to produce goods.**   ### **PRODUCTION METHODS CHANGE RELATIONS OF PRODUCTION** - Industrial production differs significantly from artisanal craftsmanship. - Both are different to circumstances where goods are made by those who use them, like peasant societies. - Marx and Engels argue that changes in production methods lead to changes in the relations of production. ### **RELATIONS OF PRODUCTION** - Relations of production involve social relationships, particularly class relationships, necessary for a production system to function. - Defined as a **way people relate with each other to sustain and reproduce a production system.** - Marx and Engels argue that changes in production methods lead to changes in these social relationships. - They see history is driven by changes in production methods. - **History advances through changes** in material production and the class relations required by it. - History is a series of **changes in production and the subsequent social changes.** ### **ECONOMIC BASE OF SOCIETY** *(Means of production + Ensuing relations of production)* - The means of productions and relations of production are **interconnected**. - Together, they form the economic base of society. - Economic base includes both, production methods and the social structures needed for production. - These interlinked means of production and relations of production is the **foundation of a society**. - To understand a society, examine the means of production and the social relations required by that means of production. - Political, legal, and societal norms are reflections of the economic base. - So, **understanding legal system requires a deeper dive into how that legal system is an expression of its economic base**. ### **ECONOMIC BASE/FOUNDATION \> SUPERSTRUCTURE/LAW+POLITICAL INSTITUTIONS ETC.** - Marx discusses society in terms of **base and superstructure**. - Economic **base is the foundation** of society and **superstructure includes** social, cultural, political, and legal phenomenon **built upon this base**. - Superstructure is the building that rises off the economic base. ### **MARX'S METAPHOR of [Foam on top of the ocean]** - The economic base is the sea; culture, politics, and law are the foam floating on top. - Understanding the foam requires understanding the underlying sea movements. - The sea (*economic base*) is a powerful, uncontrollable force that **operates independently according to its own laws** and influences the foam (*culture, politics, law*) **which must float according to the power plays of the sea beneath it.** - Hegel believed in human existence and human consciousness and saw human thought as progressing history. - Marx criticizes Hegel for **focusing just on the foam (*superstructure*) and ignoring the sea (*economic base*) beneath it.** - Marx argues that [human consciousness does not change history] [BUT] **history changes the human consciousness**. - Historical changes drive the way we understand and orient ourselves in the world. - **Economic and material shifts moving according to their own forces drive historical changes.** ### **SIMILARITY BETWEEN CAPITALIST VON HAYEK VS MARX = ECONOMIC NATURALISM ** - Von Hayek is a **market/economic naturalist.** - Von Hayek, a key capitalist, shares some similarities with Marx who is a communist. - Both Marx and Von Hayek **share the notion of economic naturalism** i.e. the **economy moves by its own laws**.   **[CRITICISM] of economic naturalism** - Recent views suggest that **economy is always structured by rules** even if they are unwritten such as tax law. Marxism is called materialist theories because they counter idealism by emphasizing material conditions over ideas. **MARX'S CONCEPT OF IDEOLOGY ** ------------------------------- - Ideology in Marxist sense has a specific meaning. - Marx conception of ideology is a **total framework for understanding the world and social reality.** - They are **group specific** i.e. they may vary from group to group, but they are the ideal. - A group's ideology including its norms, values, conceptions of right and wrong, and beliefs, **is NOT seen as a construct but as reality.** - Group's members **accept this as accurate way of viewing the world, NOT** as a frame of reference. ### **IDEOLOGY DEFINITION** - Ideology is a **systematic and interwoven set of beliefs, attitudes and values.** - It has a **normative** character. - J[udgements are based on these frameworks] of values, norms and beliefs.   - Ideology is an interwoven system of ideas about the world, society, right and wrong that **gives coherence to our judgments**. It makes our judgments coherent. And it shapes what we expect from people. - [Example]: When I queue for coffee, I expect others to line up behind me. If someone skips the que, and orders directly, I feel they are wrong and should be called out for cutting in line. - For Marx, **legal system embodies social norms and expectations and aims to produce a systematic expression of them to structure and regulate behavior.** - Ideologies are **not acquired through conscious reasoning** [BUT] rather **absorbed like outlooks, beliefs, attitudes and values**, like religion. - Many of our beliefs and values we hold to be true, but we cannot always demonstrate their truth. - If asked to justify them, we might view the questioner as lacking understanding, assuming that our way of thinking is obviously correct. - It **never occurs to us that they might need a defense or demonstration**. In fact, some beliefs cannot be demonstrated because they are **merely value judgements**. - [Example]: If asked why hard work is good, we might **condemn the questioner** and judge them as lazy rather than proving a justification. - For **Marx**, the **ideology we hold (*beliefs, attitudes, values*) in modern social forms are the ones required for the economic system to function smoothly.** ### **IDEOLOGY EXAMPLES** i. [Ideology illustration]**: Feudalism** - In feudal society, the ideology was that a **divinely ordained social order** dictated different roles such as workers, fighters, and priests. - This structure was accepted by people as a **divine reality** who believed that God had set up the world in this way and that he wanted it to be this way. - However today, we view it as a construct. ii. [Ideology Example]: **Consumptive Individualism** (*independence*)  - In our society, it is normal for **adults to seek material independence** from their families. - This requires **replicating the conditions of their former family home**. - Adults enter the housing market and buy their own homes, they acquire appliances like washing machines, dishwasher, and lawnmowers. - This **[replication feeds consumption]** i.e. drives consumer spending. - The feeding of consumption **benefits commerci[al, consumptive society]** [t]o flow. - **Contrastingly,** [extended families] sharing resources in one home is often viewed as [unusual in our society]. - For most of human history, extended families lived and worked together in shared households. - [If described to people of that era, our modern practices would seem inefficient.] - Similarly, the **practices from that era will be seen as strange in modern Australia.** - **Marxist answer** to why that will be seen as strange or abnormal is **because people have bought into an ideology**. - They have **internalized the ideology required by consumptive individualism** i.e. norms of consumptive individualism. - Whether or not consumptive individualism is good or not is a different argument to why we judge people who do not follow those norms. iii. [Ideology Example]: **Competition** (*competition for resources*) - Viewing **social life analogous to competition**, particularly resources, is **based on ideology**. - Competition is not just seen as a feature of social life but as **inherently good.** - Social life can be seen as either an analogy **to a large family** [OR] an **Amish barn-raising** (*requires cooperation to achieve a collective goal*). - Our [reaction to seeing a society as a family, as wrong or false can evidence that we are influenced by a specific ideology]. - So, our **view of society as a competition may be distorted**. ### **SELF-FULFILLING IDEOLOGY** - Viewing social life as a competition creates a self-fulfilling ideology. - This perspective leads us to act competitively, reinforcing the belief that life is a competition. - The feedback loop between ideology and social behavior makes the ideology self-confirming. - People claiming this analogy might be dismissed. **IMPLICATIONS OF MARXIST THEORY OF IDEOLOGY** - If Marx is right about ideology, many of our intuitive responses to events around us are driven by ideology operating in autopilot, and we should question that autopilot from time to time. - **Ideology arises from underlying social forms** (*we have social forms e.g. capitalism and that social form will produce ideology*). - **Ideologies are frames of reference, structured beliefs, values and norms of the people who inhabit those social forms**. - However, as the underlying economic base of the social form starts to change, ideologies will crumble and start to decay. - With change in social form, inconsistencies between what\'s going on in society and what we believe arise. - This leads to confusion and the eventual adoption of new social forms and ideologies. - New economic base and production means bring about a new society, with its own ideological orientation suited to the means of production, and the necessary relations of production within it. [Example]: **Feudal Society** - Feudal society had ideologies that supported the structure of people who prayed or worked or fought. - So, when society transitioned into post-feudal, early artisanal societies, these ides began to break down. - The **divine right of kings and other feudal ideologies began to be questioned**, which had never been questioned during the feudal period. ### **MARX'S HISTORICAL NARRATIVE (DEBUNKED)** - **History begins with small, egalitarian, communal societies** (*classless and technologically advanced*). - As **production modes become complex, distinct classes emerge** and one **dominant class controls production** and subordinates other classes by incorporating them into a production system. - **Economic base creates class antagonisms,** which are essentially quelled by institutional and ideological mechanisms. - **Ideological mechanism:** Class antagonisms in feudal society are quelled by thinking that God wants some people to be laborers **e.g.** if you do not labor, a person on a horseback with a club, representing the law can come and smack you. - **Institutional mechanism:** comprises of the law, political institutions, and ideology (*superstructure*). - **Law: If you move beyond the boundaries shaped ideologically, the law will come down on you**. - **The institutions and the ideological discourse that is built around this social form give it the appearance of rationality.** - The institutions and the ideological discourse built around a social form give it the appearance of rationality. Indeed, they make it seem **natural and necessary**. - OTHER WAY: An **institutional superstructure and accompanying ideology to support the economic base of the society**. These mechanisms persist until a shift in production mode allows previously subordinated classes to dominate, often through revolutionary move. - When such shift occurs, old institutions and ideologies become inadequate, their inconsistencies are exposed, and they crumble. Marx views **history as a series of such changes**. [Example]: - During the war, women took job traditionally held by men in the U.S. and England. - Their success in these roles showed that previous ideologies about women's work were no longer rational or natural. - This **shift was an unintended consequence, as it led to women's liberation**. - This historical accident was an accidental development. [Example]: - **Bourgeois revolution,** the transition from a peasant feudal society into a bourgeois society, dominated by the middle class. - Institutional superstructures (law, police, and politics) and ideology are **interconnected** in this process. - As the economic base of society changes, class relations and ideologies and institutional superstructures governing the society need to be reconfigured. - Although, these changes may lag, they eventually align with the new economic base. - A **change in the base brings a subsequent change in institutions and ideology**. - This is the movement of history as **opposed to Hegel's** ideas. Indeed, **ideologies are not autonomous**. - Ideologies respond to changes in the economic base, like how foam moves with the sea. - **Legal system emerged** ### **CURRENT SITUATION** - The **bourgeois revolution** in the **17th century** marked the **birth of modernity leaving the proletariat** as the last remaining subordinated class. - **Marx** views the proletariat or working-class revolution as the **inevitable conclusion to historical revolution**. - This revolution is brought about by the **contradictions and class tensions** that underpin bourgeois society. - This **proletariat revolution leads to communism, which for Marx is what Hegel referred to as the end of history** i.e. the final and highest phase of socio-economic and political development *(with no further evolution).* - **Interestingly, Marx assumes the economic base is being perfected with each revolution. This assumption that history moves forwards and never backwards is one thing Marx has in common with Hegel's dialectical process.** - **[For example, Marx never contemplates a change in the economic base (ocean/material conditions) that would produce a historical regression, such as a return to feudalism subordinating the middle class.]** ### **LAW (AND THE STATE) WILL DISAPPEAR WITH THE REVOLUTION AS UNNECESSARY ELEMENTS** **Results of the proletariat revolution** - A **return to a classless society where the means of production are collectively owned, which is where history began, but now it will be a technologically advanced society**. - For Marx, [history moves from a primitive, egalitarian, state through a tense, conflict-ridden phases to a return to a classless society, now technologically advanced]. - Therefore, subordinate or dominant **classes do not exist**, **class tensions have resolved** through historical process, and **superstructural institutions and ideologies that maintained class subordination have withered away**. - View of reality becomes clear **without any influence of ideology** and **society is no longer governed by forces**. - Then there is transition to full **communalism.** - Marx never described communalism because it was a **result of history not theory**. - Marx did not envision Soviet Union because like communalism, it is a product of historical development, not theory. - **Final** historical step: the **state and positive law will disappear** as unnecessary elements. - In the communist society at history's end, neither the law nor the state is needed. - As class tensions and subordination have ended, **law is no longer needed to discipline people** who are reacting to subordination or class tensions. For example, if you do not labor, a person on a horseback with a club, representing the law cannot come and smack you. - The state, as an institutional mechanism to direct society, is also unnecessary with collectively owned means of production (*egalitarian society*)*.* **MARXIST CONCEPTION OF LAW** ----------------------------- **[\*Law is not autonomous]** *(part of the superstructure, reflecting needs of the economic base at an ideological level)* 1. **Define law being autonomous:** Treating law as autonomous means viewing it as **freestanding without reference** to anything else i.e. capable of addressing legal issues purely through legal reasoning which implies that law exists independently and can shape legal reality by itself\\\\the pure product of self-contained legal reasoning. 2. **Why law is not autonomous:** The law is not autonomous because, as a part of the superstructure, law is ideologically aligned with a society's economic interests (law is sea foam on top of the ocean which is the economic base, and law takes shape accordingly). For example, in a capitalist society, the scope of law (legislation passed and legal decisions) is limited by the market's needs. Therefore, the law serves the interests of the dominant class (capital owners). - Law does not have independent existence as it reflects and reproduces economic base. - Changes in economic base will result in changes in the form of law. - As part of the superstructure, l**aw adapts to changes in the economic base**, like foam on the sea. - It reflects economic movements and not **any legalistic logic**. - Contrary to Hegel, law does not shape social reality, but **it [defends a predetermined shape] and reproduces the current status quo**. **[Therefore, those who claim that law is an autonomous discourse are fetishizing the law.]** - Per Marx, Believing law is autonomous is **fetishizing** it i.e. **attributing to it powers or realities it does not have**. [Example]: a shaman attributing power to a decorated stick or people attributing power to a statue in a temple through sacrifices. - **Consequently,** we consider law as having a power that it does not have i.e. a power of essentially creating right and wrong because, **law is the product of the material and economic base and depends on it**. - [Example]: **Equality before law** - Law is said to grant us equality, but its **practical application is uneven**. - **Education and wealth affect the representation in legal processes and their outcomes**. - A rich and educated individual with private legal counsel is not on equal footing as a poor, illiterate individual with a legal aid. - In **principle**, both individuals might seem equal before law, but in **practice**, they are not. - The language of the law may present equality as a principle but can be ideological in that sense. - The **language of equality often masks an unequal reality**. - If, we consider equality based on language of the law, Marxists would argue that we have attributed the law a power which it does not have *(fetishizing)* and that one must look outside the language of the law if interested in equality and inequality. - For Marx, the law is not autonomous, but he is bound up with economic factors (*of the economic base*). - It means that both [in terms of the nature of the law and any legal judgment, one must understand the way material and economic conditions (*the economic base*) underwrite and shape that law and judgment]. **ENDURING ASPECTS OF MARXIST CONCEPTION OF LAW** ------------------------------------------------- **[Enduring Aspects]** 1. **Marxist theory, in agreement with Hegel, holds that social inequality brings problems of instability, tension and conflict. As a result, society becomes prone to crisis.** Marxist theory also states that **extreme social inequality** between wealth and poverty is caused by **unregulated capitalism. Modern economist Picketty agrees with both arguments above.** 2. Many contemporary Marxists agree that liberal democratic societies support liberal democratic social forms i.e. capitalism. This is seen as **complicit in maintaining the domination or subordination of the working class.** ### **\*MARXIST REJECTION OF LEGAL AUTONOMY PERSUASIVE (ADOPTED BY AMERICAN REALISTS AGAINST FORMALISM)** - The Marxist critique's [rejection of legal autonomy is crucial for understanding law]. It **helps counter formalism** which often assumes law as autonomous. - Rejection of legal autonomy is **not unique to Marx**: [American Realists, who are not necessarily Marxists, also challenge the notion of legal autonomy]. You can **reject legal autonomy without being a Marxist**. **CRITICISMS OF MARXIST CONCEPTION OF LAW** ------------------------------------------- - The idea that law is purely an instrument of **class domination** used after the bourgeois revolution by the bourgeois state to assert the interests of the bourgeoisie against the proletariat is **excessive and problematic.** ### **SHARED CRITICISM OF HEGELISM AND MARXISM** #### **\*CRITICISM: Historical narrative of Marxist theory - Redundant aspects** - Interestingly, the contemporary theorists who align with Marxist philosophy have **diverged from the historical narrative provided by Marx.** ### **DR QUADRIO'S HEGELIAN CRITICISMS OF MARXIST CONCEPTION OF LAW *(even though Hegel came first)*** #### **MARX'S VIEW THAT LAW IS NOT AUTONOMOUS BUT SOLELY REFLECTS ECONOMIC FACTORS (ECONOMIC BASE) IS OVERLY REDUCTIVE.** - Marx's view that law is not autonomous but tied to economic factors *(economic base),* is **overly reductive.** - It **limits the influence of external factors** to material and **economic conditions only**. - One might agree that law is not autonomous; as influenced by various factors, including political, ethical, social, moral and economic. - However, **claiming that law can be fully understood solely on reductive economic materialist terms, is [excessive ]***[(oversimplifies the law)]**,*** **given its [complexity]**. ### **THE CORE OF THE MARXIST CRITIQUE, THE MORE DISTINCTIVELY MARXIST ELEMENT** - The law is a **tool of social domination used by the dominant class at any point in history to maintain and advance its interests**. - So, for Marx, how much of a role law plays in class domination during any period will depend on the material circumstances of that period (*i.e. depending on what is the economic base*). [Example]: role of law in **Capitalist vs Feudal Society** - In feudal societies, [law played a minor role in social regulation compared to religion]. - From the 17th century onwards, [with the bourgeois revolution, law became dominant] in social regulation. - Marxists view this shift as law increasingly serving to maintain class interests, particularly **protecting and maintaining private property**. - The bourgeois or liberal state (*capitalist*) expresses itself through law and legislation, **but behind those expressions are the class interests of the bourgeoisie.** ### **CRITICISM: LAW DOES NOT SOLELY SUPPORT THE ECONOMIC BASE BECAUSE HAS OCCASIONALLY EXPRESSED INTERESTS OF OPPRESSED CLASSES** - The idea that state uses law and legislation to express, protect and support solely economic interests is **excessive**. - While law does support economic interests, **it has also expressed the interests of the oppressed** or the weak. - [Example]: rulings on native title in Australia or labor laws in the 18th and 19th century. ### **CRITICISM: THE IDEA THAT LAW IS THE EXPRESSION OF A SINGLE CAPITALIST IDEOLOGY IS EXCESSIVE** - Marxist theses suggest that law should reflect a **unified ideological foundation** based on the needs of the economic base. - Remember: For Marx, law **maintains production relations** that underwrite the economic base and **stabilizes social structures**. - However, finding such cohesion or unitary ideological foundation for various laws and legal structures in our society (*superstructure*) is challenging. - It is easy to claim that law expresses class interests and ideology of dominant class, but **demonstrating the specific ideology underlying it is difficult**. - - This view of Marx that **law expresses a single ideology seems excessive, incoherent, and inadequate** for a pluralistic society, which has diverse ideologies from both left and right. - If law was driven by single ideology, the ideological analysis would be simpler with just identifying the laws of the left and the right. However, **even broad categories like left and right are not unified**. [Example]: - Right includes paleo-conservatives, neo-conservatives, libertarians, and neoliberals. Left includes socialists, social democrats, communists, and anarchists. And then there is a center. **There is diversity of views resulting in no unity.** - **Law emerges from a chaotic contest of various ideological viewpoints, reflecting plurality of competing voices**. ### **CRITICISM: ECONOMIC REDUCTIONISM IN THE MARXIST ACCOUNT OF HISTORY** - The Marxist view **reduces history to a byproduct of material conditions**, neglecting the contribution of human thought and ideas. - It implies that ideas follow material economic changes, but do not drive them, which is problematic. **Counter example: reformation** - Accepting the importance of material and economic conditions does not mean that they are the sole drivers of historical change or should dominate our conception of history. - This **economic reductionism** in the Marxist account of history seems to **feed into a reductionism** in the Marxist account of law. ### **CRITICISM: DESCRIBING OUR SOCIETY SOLELY IN TERMS OF BOURGEOIS VERSUS PROLETARIAT IS SOCIOLOGICALLY PROBLEMATIC, AS THAT PARADIGM DOES NOT FIT THE NATURE OF OUR CURRENT SOCIETY** **Firstly,** describing our society solely in terms of bourgeois versus proletariat is sociologically problematic, as that paradigm does not fit the nature of our current society. **Secondly,** the law and legislation **does not always support class interests** and many legal decisions in Western states challenge this view. Legal decisions are open to contestation, which undermine the idea that the state is merely an instrument of class oppression. Marxist view implies that law imposes a **spurious uniformity** (*[all law is not what it purports to be and underneath it is all the same -- dominating lower classes]*) that does not exist. A Marxist account of law attempts to force it into a uniform shape spuriously. It attributes to the law an ideological unity.