THE NATIONAL LAW

INSTITUTE UNIVERSITY,
BHOPAL

219-2020

THIRD TRIMESTER

SOCIOLOGY OF LAW

PROJECT

LAW AND MORALITY THROUGH

KARL MARX’S EYES
Submitted to: Submitted by:

Prof. (Dr.) Tapan Mohanty Archita Tiwari

2019 B.A.LL.B. 91

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 TABLE OF CONTENTS

Acknowledgment.............................................................................................................................3

Introduction..................................................................................................................................... 4

Statement of Purpose.......................................................................................................................6

Review of Literature........................................................................................................................6

Methodology....................................................................................................................................6

Early life, education, career of Karl Marx.......................................................................................7

Law in Marxist Theory of Historical Change..................................................................................8

Ideology………………………………………………………………………………………….10

Law and Morality in Non-Ideological Sense………………………………………………….....12

What Theory of Law is adequate to Marxian account? ................................................................14

Conclusion.....................................................................................................................................16

Bibliography..................................................................................................................................17

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 ACKNOWLEDGMENT

I have taken efforts in this project. However, it would not have been possible without the kind
support and help of many individuals. I would like to extend my sincere thanks to all of them.

I am highly indebted to Prof. Tapan Mohanty for his guidance and constant supervision as well
as for providing necessary information regarding the project & also for his support in
completing the project.

I would like to express my gratitude towards my parents & seniors for their kind co-operation
and encouragement which help me in completion of this project.

I would like to express my special gratitude and thanks to the Vice-Chancellor of National
Law Institute University, Bhopal for giving me such ample time and opportunity.

My cheers and appreciations also go to my colleague in developing the project and people
who have willingly helped me out with their abilities.

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 INTRODUCTION

For the products of human labor to be able to relate to each other as values, it is necessary for
people to relate to each other as autonomous and equal personalities.
If one person is in another's power, that is, if he is a slave, his labor ceases to create and form the
substance of values. The labor power of slaves, like the labor power of domestic animals,
transfers only a certain portion of the costs of its own production and reproduction to the
product.
Tugan-Baranovsky draws the inference from this that one can comprehend political economy
only by starting out from the central ethical concept of the supreme value and thus identical
worth of the human personality1. As we know, Marx infers the opposite: he relates the ethical
idea of the equal worth of human personalities to the commodity form, in other words, he derives
this idea from the practical equalization of all forms of human labor.

Man as a moral subject, that is as a personality of equal worth, is indeed no more than a
necessary condition for ex-change according to the law of value. Man as a legal subject, or as a
property-owner, is a further necessary condition. Finally, these two stipulations are extremely
closely connected with a third, in which man figures as a subject operating egoistically.
All three of these seemingly incompatible stipulations which are not reducible to one and the
same thing, express the totality of conditions necessary for the realization of the value relation,
which is a relation in which social relations in the labor process appear as a reified characteristic
of the products being exchanged.

The net result of abstracting these definitions from the actual social relation they express, and
attempting to develop them as categories in their own right (by purely speculative means), is a
confused jumble of contradictions and mutually exclusive propositions2.

1
Mikhail Ivanovich Tugan-Baranovsky, Principles of Political Econ-omy (Osnovy
politicheskoy ekonomi1), 1917, p. 60.

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Yet in the exchange relation itself these contradictions unite to form a dialectical totality.
The person engaged in exchange must be an egoist, that is to say he must stick to naked
economic calculation, otherwise the value relation cannot· be manifested as a socially necessary
relation. The person engaging in exchange must be the bearer of rights, that is, he must be able to
make autonomous decisions, for his will supposedly 'resides in objects'. Lastly, he embodies the
principle of the essential equivalence of human personalities for, in exchange. All forms of labor
are equalized and become human labor in the abstract.

Thus the three aspects mentioned above or, as people used to call them, the three principles of
the egoism, freedom, and supremely equivalent worth of the personality are indivisibly linked
and represent, in their totality, the rational expression of a single social relation. The egoistic
subject, the legal subject and the moral personality are the three most important character masks
assumed by people in commodity-producing society. The economics of value relations provides
the key to an understanding of the juridical and ethical structure, not in the sense of the concrete
content of legal or moral norms, but in the sense of the form itself.
The moral personality is nothing but the subject in commodity producing society, and then the
moral law must be manifested in the regulation of intercourse between commodity owners. This
inevitably endows the moral law with a dualistic character. On the one hand this law must be a
social law and must therefore stand above the individual personality; on the other hand, the
owner of commodities is by nature the bearer of a freedom (of the freedom, that is, to appropriate
and to alienate), which is why the rule governing transactions between commodity owners must
penetrate the soul of every commodity owner, must be his inner law.

STATEMENT OF PROBLEM

Does the treatment of Law and Morality in Karl Marx’s writing do justice to his General Theory?

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 OBJECTIVES OF STUDY
1. To know about Karl Marx.
2. To understand the concept of Law and Morality.
3. To understand Karl Marx’s perspective of Morality.
4. To know about the Marxian relation between Law and Morality

METHOD OF STUDY

This project work is based on doctrinal method of study.

REVIEW OF LITERATURE

1. David McLellan’s Karl Marx: His Life and Thought (1973).

This is jumping forward quite a bit. Berlin made the study of Marx intellectually respectable
because he was an Oxford academic and went on to greater things. His book is still in print in its
fifth edition. So Marx was noticed in the Anglophone sphere, but mostly in a fairly crude
version. The only other book of the time that approaches Berlin’s sophistication in taking Marx
seriously as a thinker, and bringing on board the politics to some extent, was Sidney Hook’s. He
was a ‘fellow traveller,’ based in New York. He wrote in the American context, as a
contemporary of Berlin’s.

Essentially, McLellan investigates this as philosophy, in a philosophical way, and isn’t so strong
on what’s there on the early reception by Marx and Engels of economic ideas. So you won’t find
much about alienation in Engels’s “Outline of a Critique of Political Economy” of 1844, which
Marx published, and was one of the pieces that excited Marx most. But Marx had to get in touch
with political economy and he did it through Hegelian philosophers. He had a lot of
philosophical battles to fight. McLellan’s dissertation was about the young Hegelians and Marx.
McLellan developed his own publication industry on this point: he published a book a year for
ten years, mining this seam. The next book was Marx Before Marxism. He puts down a marker
that there is a Marx there before Marxism, and that you can date Marxism from further down the

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line. Most of my career has been involved in exploring that, which is why I’ve been so interested
in Engels.

McLellan himself was very interested in positivism and ideological and morality theology, which
was mostly Latin American and French. Besides being interested in philosophy, he’s very
interested in religion and in politics done in and through religion. In terms of communicating the
existence of a different Marx to a very large audience, this is a notable achievement. Marx
suddenly became much more complex and interesting, and much less formulaic.

2.  Karl Marx: A Nineteenth Century Life (2013) by Jonathan Sperber.

I’m very conflicted about this book. Sperber is a historian of Germany, and particularly of
localities, and I think he is outstanding at that. He has done by far the best work on the very early
Marx, and the ancestral Marx: there is virtually a biography of Marx’s father and of all his
relations written within this book. He does provide insights and turn things around and upside
down by providing this background. In the normal run of biography, people race through the
basic early facts about Marx’s parents, sometimes including a little bit of a family tree tracing
back his early ancestors, some of whom were rabbis in the early 18th century.

On the one hand this is interesting, but on the other hand, it doesn’t prove much, given that he
really came to atheism quite early, and was already for Hegelian pantheism. He knew a lot about
doctrinal Christianity, but couldn’t care less, and showed a lot of contempt for Jewish studies,
Jewishness, and any sort of religious connection. He was interested in anti-Semitic discourse as
part of a larger discourse about capitalism, rather than as a multicultural inclusive liberal
discourse about how we get on with religions in a society. He thought that religion was just a
total drag on the intellect from beginning to end. The sooner people got out from under it the
better. If you don’t think people should worship money, you’re not going to think that people
should worship God, either. Marx was really clear on that.

I think he is out of his depth in the philosophical politics and the philosophical ideas as they
come up as Marx develops. That isn’t his strength. He is strong on the 48ers with whom Marx
was involved — not famous revolutionaries, they only became famous when some of them were
persecuted and charged. A few of them were put on trial in Cologne after the revolution. Marx’s
only brush with large-scale publicity arose in that era and a tiny bit later in 1870. He was
otherwise quite obscure. Sperber is very good at bringing the 1848ers to life, though some of it is
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a bit gossipy. In terms of activists arguing with each other and trying to intervene in various
ways in various situations, what it’s like after they are in exile, I think Sperber is very good. But
that, again, is only a small-scale characterisation, looking at people who were neither great
political thinkers nor activists, and reconstructing them from the archives, people who would
otherwise be footnotes in the normal biographies of Marx. You can’t be an educated person and
know anything about world history without knowing something about this famous ideology.

3. Why Marx was Right – Terry Eagleton

A call to reconsider the widely accepted notion that Marx is a “dead dog” from renowned literary
theorist Terry Eagleton. In this provocative and highly readable book, Eagleton questions the
plausibility of ten of the most common objections to Marx’s thought – among them, that Marx’s
ideas of law and morality, that Marxism always leads to tyranny in practice, that Marx’s theory is
deterministic and undermines human freedom. Always witty and passionate, Eagleton peppers
his spirited defence (with some reservations) of Marx’s ideas with his own literary and cultural
insights.

EARLY LIFE, EDUCATION AND CAREER

Karl Heinrich Marx (5 May 1818 – 14 March 1883) was a German philosopher, economist,
historian, sociologist, political theorist, journalist and socialist revolutionary.
Born in Trier, Germany, Marx studied law and philosophy at university. He married Jenny von
Westphalen in 1843. Due to his political publications, Marx became stateless and lived in exile
with his wife and children in London for decades, where he continued to develop his thought in
collaboration with German thinker Friedrich Engels and publish his writings, researching in
the reading room of the British Museum. His best-known titles are the 1848 pamphlet, The
Communist Manifesto, and the three-volume Das Kapital. His political and philosophical thought

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had enormous influence on subsequent intellectual, economic and political history, and his name
has been used as an adjective, a noun and a school of social theory.

Marx was privately educated by his father until 1830, when he entered Trier High School, whose
headmaster, Hugo Wyttenbach, was a friend of his father. By employing many liberal
humanists as teachers, Wyttenbach incurred the anger of the local conservative government.
Subsequently, police raided the school in 1832 and discovered that literature espousing political
liberalism was being distributed among the students. Considering the distribution of such
material a seditious act, the authorities instituted reforms and replaced several staff during Marx's
attendance.
In October 1835 at the age of 17, Marx travelled to the University of Bonn wishing to study
philosophy and literature, but his father insisted on law as a more practical field. Due to a
condition referred to as a "weak chest", Marx was excused from military duty when he turned 18.
While at the University at Bonn, Marx joined the Poets' Club, a group containing political
radicals that were monitored by the police. Marx also joined the Trier Tavern Club drinking
society (German: Landsmannschaft der Treveraner), at one point serving as club co-
president. Additionally, Marx was involved in certain disputes, some of which became serious:
in August 1836 he took part in a duel with a member of the university's Borussian
Korps. Although his grades in the first term were good, they soon deteriorated, leading his father
to force a transfer to the more serious and academic University of Berlin.

Marx's critical theories about society, economics and politics – collectively understood as Marxism –

hold that human societies develop through class conflict. In capitalism, this manifests itself in the conflict
between the ruling classes (known as the bourgeoisie) that control the means of production and the
working classes (known as the proletariat) that enable these means by selling their labour power in return
for wages. Employing a critical approach known as historical materialism, Marx predicted that, like
previous socio-economic systems, capitalism produced internal tensions which would lead to its self-
destruction and replacement by a new system known as socialism.
For Marx, class antagonisms under capitalism, owing in part to its instability and crisis-prone
nature, would eventuate the working class' development of class consciousness, leading to their
conquest of political power and eventually the establishment of a classless, communist society
constituted by a free association of producers. Marx actively pressed for its implementation,

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arguing that the working class should carry out organised revolutionary action to topple
capitalism and bring about socio-economic emancipation.

LAW IN MARXIST THEORY OF HISTORIC CHANGE

Both “law” and “morality” are typically denominated part of the ideological superstructure in the
Marxian theory of historical transformation. According to what I will refer to as the “Orthodox
Functionalist” version of the theory (most clearly stated in the 1859 Preface to A Contribution to
the Critique of Political Economy and given systematic exposition by G.A. Cohen in 1978 3), any
socio-economic order has three important characteristics.

First, there is the level of development of the forces of production, the means by which human
beings produce everything that they need and (at later stages) want. The forces of production
include human labor power—a relative constant in history, except to the extent that humans
grow somewhat taller and stronger over time—and, more importantly, what we may call
“technology,” namely, all the tools by which human labor power expands its productive output,
from the shovel to the steam engine to the computer. The Marxist theory assumes, not
implausibly, that the forces of production grow in productive power over time, and that
assumption is crucial to the entire theory.

Second, there are the relations of production, which we can, following Jon Elster 4, think of as the
“property rights” characteristic of a particular socio-economic order. In particular, the crucial
question is the distribution of property rights in the forces of production. For example, do
persons have property rights in their labor power (as under capitalism) or do others own their
labor power (as under feudalism)? Who owns the major forms of technology and mechanical
production? In the classic Marxist theory, the “proletariat” own only their labor power, while the
“bourgeosie” own all the other forces of production and purchase the labor power of the
proletariat for a survival wage. Under feudalism, feudal lords own all the forces of production,
including the labor power of serfs as well as their tools. In 21st-century capitalism, those who
own and sell their labor power often get more than survival wages—law professors are but one
example—and while the other forces of productions are largely owned by a small number of

3
[add cites—note that Cohen’s version has to be supplemented with a causal version]
4
[cite to Elster 1986, __]
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private individuals, many others have partial stakes (through stock ownership) in small portions
of the forces of production.

Third, and finally, there is the ideological superstructure of society, which includes the moral,
political, legal, and religious ideas. The crucial claim of the Orthodox Functionalist version of
the Marxist theory of history is about the relationship between the three components.
According to this theory, what explains the content of the ideological superstructure is that it
contributes to legitimizing and thus stabilizing the relations of production (it does so by
presenting those relations as, inter alia, just, fair, natural, inevitable or some or all of the
preceding); and what explains the nature of the relations of productions is that they contribute to
maximizing the use and development of the forces of production. So, for example, at some point
feudal relations of production were incompatible with exploiting forms of production made
possible through steam and water power, as well as mechanical tools, thus giving the nascent
bourgeoisie an incentive to overthrow the feudal relations of production in order to allow them to
effectively exploit these new productive forces.5

CRITICAL ANALYSIS:
In this head what I am trying to elaborate about the Marxian Theory is that Karl Marx believes
that the transformation of the society from Capitalist to Communist would be the best way
possible to end the sufferings and grievances of the lower unfortunate class. The Capitalistic
Society is divided severely into class forms in which one class is superior to other class because
of various criteria. Marx suggests that there is a development of forces of production constantly
may it be in human’s power or mind or the technological development. Marx believes that when
such development will take place the society will start to move from the Capitalistic to
Communist form
.
Marx also believes that the upper caste or the Bourgeosie own the land, the technology and has
the means to buy labor as well. Whereas the Proletariate only own their labor power. When the
Proletariate own and sell their labor, they will earn more than survival wages and hence can
purchase land or other sources of production.
5
3Hugh Collins offers a more subtle account on this point, but one that makes the same point, in Marxism and Law
(Oxford: Oxford University Press, 1982), p. 21. On other issues, Collins is less satisfactory.
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Through these pointers Karl Marx is trying to state that these factors will lead to decrease in the
gaps between both the strata of society. And this will lead to the transformation of Capitalistic
Society to Communist Society and this new society will be able to function peacefully without
any law as there will be adequate means for everyone.
But what Karl Marx failed to explain was that even the Communist Society will not be able to
function is lawlessness.
As H.L.A. Hart argued a half-century ago, even a “society of angels” would have need of law:
not because angels would ever be inclined to do the wrong thing , but because even angels need
systematic guidance to coordinate their activities effectively in the service of the common good.
Communist societies will be no different, and not because Marx assumes that individuals in such
societies will be “angels”; rather he assumes that, in the absence of the need for constant
competition for economic survival, individuals will behave quite a bit differently than they do
under capitalism. But such individuals will have the same needs as those in Hart’s “society of
angels” and will have to compete with each other for each and every basic necessities required to
continue ones livelihood.

IDEOLOGY
What makes law or morality “ideological,” in Marx’s clearly pejorative sense of that term? For
reasons of both time and space, I am not going to venture into questions of textual
interpretation.6 Instead, I want to focus on what I take to be the philosophical interesting core of
the Marxist theory of ideology—I will call it, accordingly, the “Marxian” theory of ideology,
leaving for another day the question whether this is the best interpretation of everything Marx
said on the matter.7
On the Marxian theory, an “ideology” in the pejorative sense is an inferentially related set of
beliefs about the character of the social, political and economic world that has two
characteristics: (A) it falsely represents what are really the interests of a particular economic
class as being in the general interest (call this “the Interests Mistake”); and (b) the Interests

6
I have found instructive the following: Raymond Geuss, The Idea of a Critical Theory (Cambridge: Cambridge
University Press, 1981); and Jaime Edwards, “The Concept of Ideology” (PhD dissertation in progress, University
of Chicago).
7
Edwards and Forster, op. cit., are better on the interpretive questions.

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Mistake is only possible because those who accept the ideology are mistaken about (or ignorant
of) how they came to hold those beliefs (call this “the Genetic Mistake”).8 What makes a set of
beliefs with these characteristics “ideological” in a pejorative sense is not simply that it involves
mistakes—mistakes are extremely common in the cognitive economy of any person—but that
the mistakes affect the interests of the agent, that is, they are the kinds of mistakes that anyone
concerned about their actual interests would want to correct. And because of that, continued
credence in the ideology would not be compatible with understanding its actual genesis, since if
those in the grips of the ideology understood the actual causal process by which they came to
hold these pernicious beliefs they would no longer accept them. (Why etiology of belief bears
on its acceptability is a point to which we will return.)
Here is an example that will help make concrete what is at stake in the Marxian theory of
ideology:
A. Members of the “Tea Party” in the United States believe that low taxes are in the
general interest (meaning, in particular, that they are in the interest of the lower- and middle-
class people who make up large portions of the Tea Party).
B. Members of the “Tea Party” are mistaken: low taxes are not in their interest, since middle-
and lower-class people depend on social security, me dicare, public schools, public parks, and
other facilities that satisfy the needs and desires of most people and that can only be funded at
adequate levels if taxes are higher, especially on the wealthy.9
C. Members of the “Tea Party” are mistaken about which policies are in their interest because (in
part) they are mistaken about how they came to believe (A), i.e., they do not realize the extent to
which propaganda by the ruling classes led them to their false belief.
If they realized the extent to which, e.g., billionaires fund advertising and candidates would go to
promote the belief in A because it serves the interest of billionaires, 10 they would no longer be
able to believe A.

8
Geuss, The Idea of a Critical Theory gets this almost right, except his “epistemic” sense of ideology is overbroad:
the Interests Mistake is not an epistemic mistake except in the trivial sense that it is false; but all ideologies involve
false beliefs, and so if an epistemic mistake is not confined to a mistake about justification, the “epistemic” sense
swallows all the others
9
The complete account would require a more detailed theory of interests, though for purposes here it is reasonable
to assume that human needs and desires of the kind noted will play some role in an account of the interests of
persons in the United States.
10
[note, e.g., on the Koch Brothers front organization “Americans for Prosperity”] To be sure, billionaires may
genuinely believe that these polices are in the general interest, but this false belief is easy to explain given
wellknown self-serving and wish-fulfillment biases to which humans are subject.
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Nothing depends for our purposes on whether this is correct, though it is certainly prima facie
plausible. What matters is that it illustrates the conceptual structure of the claim that certain
moral, political, or legal ideas might be ideological.

CRITICAL ANALYSIS:
It is not always possible that what is ideological may also be good for people of each and every
class. According to Karl Marx’s Ideological theory shows that how the economic interests of one
particular class is falsely represented as the interests of everyone in the society.
This mistake is only possible because the people whose interest is being held at stake they don’t
know about this ideology and accept it mistakenly. Geuss, The Idea of a Critical Theory gets this
almost right, except his “epistemic” sense of ideology is overbroad: the Interests Mistake is not
an epistemic mistake except in the trivial sense that it is false; but all ideologies involve false
beliefs, and so if an epistemic mistake is not confined to a mistake about justification, the
“epistemic” sense swallows all the others.
What matters is that it illustrates the conceptual structure of the claim that certain
moral, political, or legal ideas might be ideological. This is not always moral or legal. Imposing
the interests of one class as the interests of whole community is not at all moral. And according
to law every person should be treated equally also their interests and thoughts and here it
compromises the interests of the lower class for the interest of upper class in name of general
interests which not at all stands under the criteria of legality.

LAW AND MORALITY IN NON-IDEOLOGICAL SENSE

The preceding account of ideology creates conceptual space for a non-ideological sense of both
morality and law in the Marxian theory. That is, moral or legal ideas can be non ideological
insofar as (a) they do not falsely represent the interests of a particular economic class as in the
general interest; and/or (b) the acceptability of these ideas does not depend on obscuring their
genesis in class-specific interests. If legal or moral ideas do not represent the interests of a

14
particular class as being in the general interest, then it is easy to see why these ideas would not
be pejoratively ideological. But the second point is of equal importance, since Marx presents (as
we will see) communism as promoting class-specific interests—the interests of the vast majority
—yet does not think communist ideology is an ideology in the pejorative sense. Why not?
Consider, to start, a quite different case. Suppose that we have the empirical science we have
because it is in the interests of the ruling class that we have this empirical science. This is
probably true: many (maybe all) members of the capitalist class have a powerful economic
interest in a correct understanding of the causal laws governing the natural world for obvious
reasons, so they have a reason to encourage an epistemically reliable empirical science that gives
them the understanding essential for effective productive exploitation of the natural world.11
This fact--assuming it is a fact--about the genesis of our empirical science would not affect its
acceptability, however. The acceptability of empirical science depends on epistemic criteria
(such as evidential warrant, explanatory power and predictive success), and not on whether the
resulting claims are genuinely in everyone’s interest. So it can be true, both, that we have the
empirical science we have because it is in the interest of our capitalist overlords, and that fact
would not affect the epistemic acceptability of the claims of that science.
Moral and (many) legal claims are different from the claims of empirical science in this regard.
If we accept them as legitimate or warranted only because of a mistake about their class interest-
specific genesis, then discovering that fact makes them unacceptable, since moral and legal
claims are almost always presented as committed to a basic equality of interests. So, for
example, if the reason current U.S. free speech doctrine protects unrestricted spending by the
wealthy in elections is because this insures that the political system does the bidding of
plutocrats,12 then most people have no reason to affirm the free speech value of unlimited
political spending by the wealthy: if free speech is a value, it must be good for everyone, not just
the wealthy. (Notice that what is at stake is the moral status or acceptability of the legal claim:
the status of the claim qua legal does not depend on these considerations.) So, too, with moral
prescriptions and proscriptions: in both utilitarian and deonological versions, they present
themselves as objective demands, not hostage to the interests of particular persons. If the
acceptability of such norms depends on obscuring the fact that they serve the interests of only
certain persons, then such norms would cease to be acceptable.

11
Cf. Peter Railton, “Marx on the Objectivity of Science,” in R. Boyd et al. (eds.), The Philosophy of Science [MIT
Press, 1991).
12
How might that turn out to be the reason—the causal explanation—for why this is current legal doctrine in the
U.S.? The mechanism is complex. To start with, the U.S. Supreme Court functions as a super-legislature,
something both political parties have understood for a long time.
15
To sum up, in the Marxian theory, norms (moral or legal) are ideological insofar as (i) we
have the norms we have because it is in the interests of the dominant class that we have them; (ii)
we are unaware of the truth of (i); and (iii) being aware of the truth of (i) is incompatible with
continued belief in those norms being acceptable.
The preceding goes a long way towards explaining why Marx consistently presents the
communist normative point of view as a class-specific one. (I take Marx to be a kind of
consequentialist welfarist with regard to what we would call “moral” questions, i.e., he thinks the
right thing to do is what would maximize the well-being of the vast majority of humanity. He
does not argue for this, since he believes, correctly, that normative theorizing is irrelevant to
revolutionary practice: of course, the vast majority of humanity will be interested in maximizing
its well-being13.

CRITICAL ANALYSIS

The real aim of theory is to help the vast majority understand the actual obstacles to realizing its
well-being. Marx describes,14 for example, “the proletarian movement” as simply being “in the
interests of the vast majority”. But not always what is in majority population’s interest is either
legal or moral. It can be mostly only one amongst both of them.
Notice that an upshot of this way of thinking about Marx’s own ethical views is that it follows
that the ethical imperatives of the communist movement would not necessarily constitute the
morality of a communist society. What such a morality would be is something that will simply
have to be discovered in the course of historical developments, since, as
Engels says, “All moral theories have been...the product...of the economic conditions of society
obtaining at the time”. Only under communist relations of production would individuals actually
discover the morality appropriate to a non-class society. The same is going to be true of law, I
take it. That is, whatever legal norms are necessary to guide the affairs of a human community
in which people are not continuously engaged in the struggle for economic survival, we will
discover them under those future conditions (assuming they are attainable). But both legal and
moral norms in such conditions will not be ideological in the pejorative sense that Marx
critiques.

13
See “Marxism and the Continuing Irrelevance of Normative Theory,” Stanford Law Review 54 (2002): 1129
14
All cites from The Marx-Engels Reader, ed. Tucker (1978) , page references in the text.
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 WHAT THEORY OF LAW IS ADEQUATE TO MARXIAN
ACCOUNT?

While Marx has, as I suggested above, recognizable ethical views (consequentialist

welfarism), he does not advocate for particular legal views. Law is not the instrumentality of
communist revolution, obviously. The general Marxian theory does, however, require us to be
able to say what the law is in three contexts, as noted earlier: (1) we have to be able to identify
laws that constitute the relations of production; (2) we have to able to identify laws (and
associated beliefs about the law) that are ideological in the pejorative sense; and (3) we have to
be able to identify law that is non-ideological because it characterizes the legal relations of a
non-class-based society. Only a positivist theory of law is adequate to these tasks; the best
known non-positivist theory, Dworkin’s, is not. Indeed, Dworkin is, in Marxian terms, an
ideologist, someone who tries to systematize ideological illusions.
A positivist theory of law claims that what law is in any society is a matter of certain
complicated psycho-social facts; more precisely (1) law is whatever satisfies the criteria of the
“rule of recognition” characteristic of a legal system, and (2) the rule of recognition consists of
the criteria that officials actually apply in deciding what the law is and which officials treat as
obligatory (rightly or wrongly). For the Marxian, one virtue of the theory is that it is silent on
whether the valid law or the criteria of legal validity are justified, good, obligatory, or
authoritative. Thus, a positivist theory can describe (a) the laws that constitute the relations of
production, even the relations of production of societies that harm the well-being of the vast
majority; (b) law that is ideological in the pejorative sense; and (c) the law characteristic of a
non-class-based society. In all three cases, the legally valid norms will be whichever norms are
picked out by the rule of recognition (as constituted by the official practice); what distinguishes
the three cases will be, respectively, whether (a) the norms are constitutive of the relations of
production, (b) the norms are ideological, in the sense defined in the prior section, and (c) the
norms are those of a communist society.
There are few serious alternatives to the positivist theory of law, despite a voluminous and
somewhat notoriously confused secondary literature.15 Natural law theorists like John Finnis
effectively concede the correctness of the positivist theory for the questions it was trying to
15
Cass Sunstein’s memorial notice for Dworkin, Bloomberg News
17
answer, while others, like Mark Murphy, admit that the only remotely plausible natural law
thesis—the “Weak Natural Law” thesis according to which necessarily law is practically
reasonable means some thinking like normal (or central) instances of law are practically
reasonable—is not obviously incompatible with positivism, as Murphy admits. The one
systematically articulated view in the literature that is genuinely anti-positivist is that of the late
Ronald Dworkin.

CONCLUSION WITH CRITICAL ANALYSIS

18
One of the many virtues of the positivist theory of law, as Hart noted more than a half-century
ago16, is that it allows us to pick out an important social phenomenon—normative organization of
society by law—that admits of psychological, sociological, economic, and philosophical analysis
and critique without prejudging any questions about the value, justifiability, or moral propriety
of such organization. Dworkin, by contrast, was always, and obviously, an apologist for the
capitalist system in his legal and political philosophy: various incantations about equality and
respect add up to nothing more than a call for more redistributive taxation. Indeed, it is worse
than that: we are offered, by Dworkin, the absurd image of the legal community of “integrity” as
like an enormous family, in which associative obligations to obey the law arise because of the
“equal respect” enjoyed by everyone17. Dworkin articulated this vision in the midst of the
reactionary “Reagan Revolution” in the United States, when labor unions were busted,
progressive taxation was reversed, laws regulating rapacious capitalists were eviscerated, and
America went decidedly “off the rails” as a civilized democracy. In trying to present “law” in
these circumstances as above some standard of moral justifiability, Dworkin was the
quintessential “ideologist” in the Marxian sense: he told a story about law that obscured, from
top to bottom, what was actually happening in the society at large.
The late G.A. Cohen, a brilliant scholar and philosopher, led Anglophone Marxism into
Christian moralizing in his late work. But he correctly diagnosed the moral hypocrisy of
Dworkin (and his friends and colleagues like Thomas Nagel) in his book If you’re an egalitarian,
how come you’re so rich?29 The title was a jab at Dworkin, who owned real estate fit for
plutocrats in both London and New York while pontificating about equality. The jab was apt for
reasons that Nagel himself acknowledged:
“I have to admit that, although I am an adherent of the liberal conception of [justice and
equality, like Dworkin], I don’t have an answer to Cohen’s charge of moral incoherence. It is
hard [as a bourgeois liberal] to render consistent the exemption of private choice from the
motives that support redistributive public policies. I could sign a standing banker’s order giving
away everything I earn above the national average, for example, and it wouldn’t kill me. I could
even try to increase my income at the same time, knowing the excess would go to people who
needed it more than I did. I’m not about to do anything of the kind, but the equality-friendly
justifications I can think of for not doing so all strike me as rationalizations.”

16
See Hart’s discussion of the “theoretical” virtues of his positivism in The Concept of Law, __-__.
17
Law’s Empire, Chapter Six.
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This is admirably candid, but it also stands as an indictment of a whole generation of moral and
political philosophy in the Anglophone world. More importantly for our purposes, it confirms
the ideological character of so much normative philosophical work: its normative commitments
do not affect the practice of those who produce it, and yet its production allows them to advertise
an appealing-looking moral seriousness, but against the backdrop of economic relations which
systematically harm the well-being of the vast majority.

BIBLIOGRAPHY

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