Marxist Perspectives of Law in Capitalist Society: A Reflection of Contradiction, Inequality and Ideology?

Marxist Perspectives of Law in Capitalist Society: A Reflection of
Contradiction, Inequality and Ideology?
Sigi W. Mwanzia*
The question pertaining to what law is occupied a central position in H.L.A Hart’s writings,
with Marx himself noting the societal and historical significance of an authority which enables
the existence of “social stability and independence from mere chance and arbitrariness.”1
However, unlike Hart, Marxist materialist theories, in their orthodox form, typically tend to
refute the primary importance of law, presenting it as a mere epiphenomenal and derivative
tool for the advancement of oppression, incongruities, and societal inequality. Materialist
Marxist theories relegate law not to the economic material base but rather to the ideological
social superstructure, asserting that the law has a subservient existence and instrumental
character which is “ultimately determined by the material conditions of society.”2
It is imperative to elucidate the distinction between ‘orthodox’ jurisprudence from those

theories posited by Marx, and Marxist theorists. The latter hinge their concern upon the
proliferation of explanations about the nature of society, exploring the treacherous depths of
the law as an ideological societal tool of oppression, whereas the former present systematic
examinations of the law as a ‘closed system’, often disregarding the social environment within
which such theories are conceived; comparable to a doctor’s complete indifference of the
amniotic fluid necessary for foetal development in its mother’s womb.
MARXIST JURISPRUDENCE: PROBLEMS
The jurisprudential assessment of the law and society, overwhelmingly theoretical in stature,
has often been criticised, much like Marx’s analytical theories, for its lack of transference to
applied pedagogy, criticism founded on perplexing expectations owing to the fact that the
resolution of practical problems oft requires, as their initial reference point, a theoretical
footing. Marx’s writings, owing to the dense political and philosophical influences, pose
problems for the jurisprudence student, with several commentators, such as Wacks, cautioning
against eschewing discussions pertaining to the application of Marx’s theories to ‘the law and
the state.’
The perspective embodied within Marx’s vast writings has also caused ripples in Marxist
thought, leading several commentators, notably Althusser to remark upon the existence of an
“epistemological break”3 between the ‘younger’ and ‘mature’ Marx. Communist Manifesto,
often associated with the young Marx is a polemical and politically motivated recruitment
pamphlet heavily impregnated with pathos overtones and sprinkled with highly emotive and
* Legal Intern, Wangari M. & Associates, Nairobi, Kenya.

1
K Marx, Capital III ( Lawrence and Wishart 1959) 793.
2
Routledge-Cavendish Law Cards, Jurisprudence (5th edn, Routledge-Cavendish 2008) 114.
3
L Althusser, ‘For Marx’ (The Penguin Press 1969) 34.
Electronic copy available at: https://ssrn.com/abstract=2960611

morally condemning language, especially predominant in his class stratification descriptions
and the capitalist system he scathingly criticises for its alienating and exploitative nature.
Marx’s condemnation of the global society the system blasphemously creates “after its own
image”4 led to Boyer’s characterisation of this pamphlet as a “period piece, a document of what
was called the ‘hungry’ 1840s.”5 The capitalist critique instigated here, per Boyer, cannot be
conceived of in another context save for the 1848 British social and economic conditions,
creating further 21st Century applicability problems.
Jurisprudence commentators in modern advanced western societies negate the importance of

Marx and Engels’ theories, stating that they “continue to exert a declining influence on political
(and legal) theory and practice.”6 Nonetheless, despite this supposed decline of sway, owed
largely to post-Cold war rhetoric associating Marxist doctrines with 20th Century
totalitarianism, communism’s supposed failures do not necessarily yield the contrary inference
that modern capitalist democracies are bereft of the lingering legal, economic, social and
political problems Marx critically magnified.
Prior to an exposition of the central tenets encapsulated within Marx’s polemical writings, it is
important to note, as Pashukanis does, that Marx’s relegation of law to the societal
superstructure resulted in Marxist writings on the law specifically, owing to the comprehensive
nature of his thought system, being regrettably meagre and “overwhelmingly negative in
character.”7 As Wacks and Vincent succinctly assert, Marx provides “scattered…
observations”8 instead of proffering a “comprehensive or systematic account of law,”9 acting
as a hamper on those focusing on the positive attributes entrenched within legal systems.
Bearing this in mind, this essay shall be predicated upon an exposition of Marx’s material and
dualist conception of law within the capitalist epoch of production which requires delving into
the historical (dialectical) materialism in Marxist thought, coupled with an assessment of the
base-superstructure relationship. This shall be followed by an analysis of the modern capitalist
legal system, from both a judicial and legislative angle in order to ascertain the veracity of
Marx’s concern that the law, is an inevitably paradoxical and disproportionate “ideological
cloak.”10 This discussion shall then culminate with an exposition of the ‘withering away’ of
law claim.
4
K Marx and F Engels, Communist Manifesto (Progress Publishers 1969) 16.
5
G.R Boyer, ‘The Historical Background of the Communist Manifesto’ (1998) 12(4) The Journal of Economic
Perspectives 151.
6
R Wacks, Understanding Jurisprudence An Introduction to Legal Theory (2nd edn, OUP 2009), 213 (emphasis
added).
7
A Vincent, ‘Marx and Law’ (1993) 20 JLS 371.
8
R Wacks, Understanding Jurisprudence An Introduction to Legal Theory (2nd edn, OUP 2009) 213.
9
10
E. B Pashukanis, Law and Marxism. A General Theory (Pluto, 1978) 733.
http://www.marxists.org/archive/pashukanis/1924/law/ch04.htm
Electronic copy available at: https://ssrn.com/abstract=2960611

HISTORICISM (DIALECTICAL MATERIALISM): CAPITALISM
“The history of all hitherto existing society is the history of class struggles.”11
The historicism encapsulated within Marx’s works, especially Capital, is an attempt to explain
the nature of societal advancement by referring to “inexorable historical forces.”12 Marx and
Engels’s non-idealist portraiture of ‘dialectical materialism’13 draws upon Feuerbach’s
materialism, and is in fact the “direct opposite”14 of Hegelian dialectics. Whereas Hegel made
use of ideas and the three-tiered ‘thesis-antithesis-synthesis’ model to explain historical
progression, Marx lamented its excessive restriction to the sphere of thought.
By magnifying the importance of practical progress and social productive activity i.e., labour,
Marx promoted the contextual primacy of the material and economic development of each
societal epoch, which he argued, alongside Engels, is inevitably linked up to a “corresponding
class system.”15
Marx in Communist Manifesto acknowledges that the class struggle is endemic to the capitalist
mode of production. This he does by narrowing the classes to “two great hostile camps”16
whose existence is marred by conflict and entwined in the vicious and unrelenting grips of
antagonism: into the bourgeoisie i.e., the class which controls the economic means of
production and the proletariat-the working classes. These two classes, Marx criticises, reveal
that the exploitative and alienating nature of the relationship is inextricably linked to the
appropriation and irrational hoarding of private property by the ruling class; property whose
basis is rooted in “the antagonism of capital and wage labour.”17
A devastating consequence of this hoarding is the promotion of competitive tendencies

between the ‘wage labourers’, those dependent on the meagre wages they receive, from the
seekers of capital for sustenance; for the continuance of its “slavish existence.”18 This sordid
exploitative and alienating existence, Marx and Engels prophetically claim, shall cease
following the violent (historically contextualised) “abolition of bourgeois private property”19
under the future socialist state and its substitution with common ownership.
The description of the materialist conception of law and society, especially in the fourth era of
human production, is concerned with the shift from feudal to capitalist modes of production.
The feudal mode of production and its accompanying structures had warped into impediments
of societal (productive) development and consequently had to be “burst asunder”20 leading to
11
12
13
A term coined by Joseph Dietzgen in 1887.
14
K Marx, Afterword to Capital (Progress Publishers 1970) 29.
15
16
17
18
19
20
a period of social revolt which culminated in the emergence of capitalism, rising like a phoenix
from feudalisms shattered “fetters.”21
Contrary to popular misconception, Marx in Communist Manifesto, heaped praise upon the
capitalist system for this shift accomplishment, for its cessation of “all feudal, patriarchal,
idyllic relations.”22 However, the basis of Marx’s concern and criticism, an issue still weighing
heavily on today’s modern systems, is the Janus-faced mask capitalism insists on donning.
On the one hand, capitalism, as an economic system, is to be lauded for its yoking of human
productive and intellectual capabilities from the “lap of social labour.”23 However, this societal
shift not only affected the economic base, but also necessarily warped both the character and
form of both the law and the State, wielding them into supposed ‘neutral’ tools and ideological
instruments of subjugation and exploitation of the proletariat in order to advance the interest
of the capitalist classes. The consequences of Marx’s theories are devastating to the legal
sector, because the law is presented as having little or no influence in societal development
“except as instruments”24; it is presented as being “neither self-supporting nor autonomous.”25
BASE AND SUPERSTRUCTURE:
“The totality of these relations of production constitutes the economic structure of society,
the real foundation, on which rises a legal and political superstructure and to which
correspond definite forms of social consciousness.”26
It is important to acknowledge the dualism entrenched within Marx’s class-mired presentation

of the law and of capitalist society. On one hand, the law is presented as a “controlled
instrument”27 manipulated by the domineering class to maintain and further their privileged
position and varied interests especially in the contract sector; an area where equality on a formal
footing is demanded.
However, following the inevitable arousal of inequality, the law is used in a repressive manner
through the use of constitutional, criminal and international law. The manifestation of this
regime, as Marx asserted in Capital, posits the law as a mere ‘reflex of the real economic
relations’; economics to Marx and his advocate, Pashukanis, is the “real thrust of the social
order.”28
Marx’s distinction between the ‘material’ base and ‘legal/political’ superstructural elements of
society is largely typified, and encouraged to be read as an architectural “metaphor.”29Cain and
21
22
23
24
25
26
K Marx, Preface to A Contribution to the Critique of Political Economy (4th edn, Lawrence and Wishart 1981)
20.
27
M. Cain and A. Hunt, Marx and Engels on Law (Academic Press Inc 1979) 62.
28
29
Hunt draw attention to a pressing issue, that pertaining to the ‘spatial content’ of the metaphor,
lamenting that Marx presented the societal elements as “structures- ‘things’ -existing as
discrete objects in spatial relations.”30
ISSUE: LAW-- ‘AUTONOMOUS OR FUNCTIONAL’?
The issue of materialism within Marx’s thought resulted in queries (implicit within the
base/superstructure discussion) pertaining to the autonomy of the law and its involvement in
capitalism’s transition from feudalism. Pashukanis draws upon a Marxist concern, that
pertaining to private bourgeoisie property, lamenting that its character shifts from a contestable
and unsteady ‘possession’ into a right imbued with “absolute, immovable”31 characteristics.
Despite this transition and enclosure of aristocratic property being facilitated by “coercion and
outright violence”,32 the law was simultaneously responsible for the creation of a complex
ideological “contractual private property-based”33 legal system.
Ireland34 asserts that two opposing views have been carved up, either forcing one to view the
law as an “essentially autonomous phenomenon”35 owing to its warping of conditions
necessary for productive changes and the establishment of private property, or as an
“essentially functional reflection of economic development.”36 The base/superstructure
distinction has proven problematic here and has given rise to ensuing queries pertaining to
whether Marx’s general articulation (cited above) infers or necessitates Marxist theory to be
“understood as positing a determinism or a reductionism.”37
The deterministic conception of the law requires a view of the legal sector as being a “necessary
consequence”38 of the economic base, which Cain and Hunt lament yields dire reductionist
consequences encouraging the diminution of the knowledge possessed by the law and ascribing
the content and form of the law as derived from the base. Gramsci, a neo-Marxist theorist,
brushed aside this conception as unsophisticated, for such a ‘passive and reductionist’ reading
ignores the issue of “how the base actually ‘determines’ law.”39 As Cain and Hunt
acknowledge, this reading merely requires one to turn to economic changes to proffer
“causal”40 explanations for changes in the superstructure, especially in the legal sector, which
becomes a reflective mirror for capitalism’s class struggle.
30
31
32
33
34
Ireland here draws on Ron Harris’s work: Harris R, Industrializing English Law (2000 Cambridge University
Press).
35
P Ireland, ‘History, Critical Legal Studies and the Mysterious Disappearance of Capitalism’ 2002) 65 Modern
Law Review 121.
36
P Ireland, ‘History, Critical Legal Studies and the Mysterious Disappearance of Capitalism’ 2002) 65 Modern
Law Review 121.
37
38
39
40
Nonetheless, it is important to note that the relationship between the base and the superstructure
is not one rooted in strict causality, a thesis vehemently refuted by orthodox Marxists. Despite
Marx’s predominance of the base, Renner asserts, in fetish-ridden legal terms, that “laws can
influence economy sufficiently to change it and can therefore be considered as causes of
economic results.”41
The exact nature of the relationship between the two societal structures, i.e., as to how exactly
the law is affected by the superstructure, necessitates an analysis of two central arguments
implicit within Marxist suppositions. The first is the ‘class materialism’ argument, which was
expounded upon by Lenin in State and Revolution and the second examines the law as
ideology.
CLASS MATERIALISM:
Marx’s own conception of materialism led to schisms within the Marxist tradition, leading to
Lenin’s elucidation, in his ‘class instrumentalism’ argument, that “the law is a direct expression
of the will of the dominant class”42 and that legal and political institutions are ‘causally
determined’ by their economic base. Lenin conceived the law to be a mere legal tool, i.e.,
instrument for the advancement of state-led oppression.
Pashukanis criticised Lenin’s conception of the law, maintaining its extremely narrow-minded
assessment of legal phenomena. Head, in support of Pashukanis’ analysis, maintains that the
protection and advancement of private property rights by the exertion of coercion by the state
and law “forms only an insignificant part of social regulation as a whole.”43 Instead more
attention should be accorded to viewing these rights as more “entrenched in the economic and
political power exercised by the (individual) holders of capital.”44
This ‘narrow-minded’ materialist notion of the law led to those within and beyond the Marxist
peripheries increasingly calling for the discarding of the base/superstructure metaphor.
However, it should be noted that a ‘substitute explanation’ is proffered by Marx in his theory
of ideology.
IDEOLOGY:
“The ideas of the ruling class are, in every age, the ruling ideas: i.e., the class which is the
dominant material force of society is at the same time its dominant intellectual force.” 45
The above statement, found in ‘The German Ideology’, is the most succinct elucidation of
Marx’s ideological theory, with its central thrust echoing Austin’s ‘bourgeois’ assertions that
law is the “command of the sovereign.”46 Marx, alongside Gramsci, Althusser and Mao Tse-
41
K Renner, The Institutions of Private Law and their Social Functions (Routledge and Kegan Paul 1976) 56.
42
43
E.B Pashukanis, Law and Marxism, A General Theory, (Inks Links 1978) 39.
44
M Head, ‘The Rise and Fall of a Soviet Jurist: Evgeny Pashukanis and Stalinism’ (2004) 17(2) Canadian Journal
of Law and Jurisprudence 278.
45
K Marx, German Ideology In: Wootton D. ed. Modern Political Thought (Hackett 1996) 804-11
46
J Austin, The Province of Jurisprudence Determined (Cambridge University Press 1995)
Tung, proponents of Marxist ideological theories, attempted to reveal capitalism’s warping not
only of law and politics to bend to its will, but also the ideas existent within the ideological
superstructure of a society in order to proffer an explanation for the confounding “willing
consent”47 of the masses to bourgeois rule.
Law, alongside politics, culture, religion and education, is identified by Gramsci as a central
social institution whose ideas are imperceptibly harnessed and dispelled in order to aid the
establishment of a general ‘ideological hegemony’; ideas which the working-class masses and
the bourgeoisie then incorporate into their consciousness.
Marx manipulates language in a paradoxically ideological manner, making use of powerful

imagery through his association of the bourgeois class with necromancy practices; it is like the
“sorcerer who is unable to control the powers of the nether world whom he has called up by
his spells.”48 Instead of being imbued with sole instrumental qualities, the meagre autonomy
granted to the law enables it, “as an alienated social power, as ideology… to dominate their
creator.”49
Marx illustrated his ‘false consciousness’ thesis through his “camera obscura”50 illustration,
stating that capitalism is, through the dissemination of concepts such as justice, rights and
liberty, able to obscure the system’s true contradictory, ideological and unequal nature. These
concepts, for the masses are fervently believed to be the epitome of truth and reality, imbued
with ideals which hold “something of real value.”51
ANALYSIS OF THE LEGAL SYSTEM: CONSEQUENCES OF MARX’S THEORIES:
Marx asserted that the capitalist state, and by inference its legal architectural institution, was
and still is used as an oppressive instrument, and one whose diverse theoretical aims and
functions are mere embodiments of “the ideological mystifications of bourgeois
intellectualism.”52
Mao Tse-tung, a Marxist revolutionary theorist claimed that “there is nothing that does not
contain contradiction.”53 The sphere of constitutional law, through its use of conflict-ridden
‘pillars’ such as the rule of law and parliamentary sovereignty has been termed, by Barendt, “a
hotchpotch of statutes, case law, and miscellaneous rules.”54
47
N Todd, ‘Ideological Superstructures in Gramsci and Mao Tse-Tung’ (1974) 35 Journal of the History of Ideas
148
48
49
R Tucker, The Marxian Revolutionary Idea (1969 George Allen and Unwin) 56.
50
K Marx, German Ideology In: Wootton D. ed. Modern Political Thought (Hackett 1996) 804-11.
51
C Sypnowich, ‘The “Withering Away” of Law’ (1987) 33 Studies in Soviet Thought 305-32.
52
53
Selected Works of Mao Tse-Tung, ‘On Contradiction’ (Marxists. Org, 2004)
th
<http://www.marxists.org/reference/archive/mao/selected-works/volume-1/mswv1_17.htm> accessed 25 April
2014.
54
E Barendt, ‘Is there a United Kingdom Constitution?’ (1997) 17(1) OJLS 145.
This term ‘constitutional’ pillar has caused significant confusion in England and Wales owing
to the fact that the British constitution remains uncodified i.e., there is no single written
constitutional document. This, coupled with the recognition that Parliament and its statutory
provisions are “legally sovereign”55 has proven problematic for the judicial body. The ‘balance
of power’ arena lends credence to concerns dealing with the restraint of the legislative body
from trampling over individuals’ freedom and fair trial rights, which Vincent notes are ‘given’
by the state based on the “idea of humans possessing property.”56
Pashukanis, in his commodity theory of law, maintains that capitalist society “is above all a
society of commodity owners”57and legal rights are a mere embodiment of a contractual
relationship. The worker, having been degraded to subservient levels below the object of their
labour, is then presented with a “rare gift… a legally presumed will.”58 Through the
advancement of freedom (to sell their labour for basic sustenance), property and individual
rights’ rhetoric, the “propertyless workers”59 are showered with fallacies pertaining to an
abstract freedom sprinkled with ‘ideologized’ egalitarian notions. The worker is deceived into
thinking that promulgated laws and the courts are working tirelessly to protect and safeguard
their rights.
However, Marx criticises, the only rights and freedom worth protecting belong to those who
realistically possess such rights, the bourgeoisie. As O’Hagan notes, this illusory “legal
freedom and equality...coexists with economic inequality.”60
As Barendt lamented, when Parliament blatantly pursues a policy disregarding fundamental

rights backed by the rule of law, the courts, owing to their hierarchical position, are sometimes
powerless to safeguard them. This is clearly illustrated in R (Corner House Research) v
Director of the Serious Fraud Office61 where the rule of law was ignored in favour of (public)
security interests.
This inherently negative and reductionist conception of law has repeatedly been criticised,
leading notable critic Chambliss to question promulgated laws which seek to combat
domination: laws which “reflect the interests of the general population and which are
antithetical to the interests of those in power." 62
Marx’s criticism is often watered down by reference to judicial and legislative laws in modern
capitalist societies explicitly striving to protect worker and consumer rights. In contract law,
Pashukanis’ domain of concern, the Unfair Contract Terms Act 197763 limits the use of liability
55
A.V Dicey, Introduction to the Study of the Law of the Constitution (Macmillan 1915) 70.
56
57
58
59
K Marx, Alienated Labour In: Wootton D. ed. Modern Political Thought. (Hackett 1996) 790-97.
60
T. O’Hagan, The End of Law? ( Basil Blackwell Publishers 1984) 49.
61
R (Corner House Research) v Director of the Serious Fraud Office [2008] UKHL 60.
62
W. J. Chambliss, Crime and the Legal Process (McGraw-Hill 1969) 10.
63
Unfair Contract Terms Act 1977 s 2(1).
disclaimers in contracts potentially describable as unfair. The presence of such terms in gym
membership forms has been an area of recent concern, leading to drives by the Office of Fair
Trading (OFT) 64 to protect the fitness-concerned consumer from disclaimers such as ‘at your
own risk’, using the Unfair Terms in Consumer Contracts Regulations 199965 as the legislative
basis for the guidance it proffered.
In addition to this, tort law imposes personal and non-delegable common law duties upon the
employer. Previously, under the doctrine of common employment, employers could not be held
responsible for the negligent actions of those they delegated responsibility to, such as
employees and/or independent contractors. Despite vehement drives by business employers to
maintain this doctrine, the legislature intervened to eradicate and abolish this unfair protection
under the Law Reform (Personal Injuries) Act 1948 s 1(1).66
The standard Marxist response to these pro-worker and consumer laws, classic of Pashukanis,
has been to turn these reformist laws upside down by imbuing them with bourgeois ‘self-
interest’67instead of altruistic motivations. A direct causal link between these legal rules and
the economic base coupled with the upheaval Marx envisaged of the working classes in modern
capitalist systems successfully being kept at bay, albeit at a minimum fee, and the ideological
fettering of the bourgeois class by the rules they themselves demarcated certainly appears to
confirm this negation.
The 2014 Zambian case, BP Zambia PLC v Chipalo,68 is an example of a judicial ruling which
appears to confirm the lack of business influence over the legal system, but which proponents
of Marxism can use to reveal the need entrenched within the capitalist system for “capitalist
(businesses) to lose a few court cases… to cover its tracks.”69
Wolff advocates for a “sensible Marxist approach”,70 one that acknowledges the influence of
varied factors in everyday legal and political functioning. Nonetheless, as Karl Popper
scathingly acknowledged,71 the side one stands on in the debate greatly influences whether
Marx’s ideas will be viewed as convincing and true or merely ridiculous.
64
Office of Fair Trading (OFT), ‘Guidance on Unfair Terms in Health and Fitness Club Agreements’ (OFT.Gov,
March 2002) <http://www.oft.gov.uk/about-the-oft/legal-powers/legal/unfair-terms/guidance#.U1ZAmPldVPI>
accessed 22nd April 2014. (NOTE: The OFT ceased its operations on 31 st March 2014.)
65
Unfair Term in Consumer Contracts Regulations (UTCCR) 1999.
66
Law Reform (Personal Injuries) Act 1948 s 1(1).
67
68
BP Zambia PLC v Chipalo [2014] ZMSC 21.
69
J Wolff, Why Read Marx Today? (OUP 2002) 59.
70
J Wolff, Why Read Marx Today? (OUP 2002) 59.
71
K Popper, Conjectures and Refutations (4th edn, Routledge and Kegan Paul 1972) 35.
MARX’S SOLUTION: END OF LAW OR SOCIALIST RECONSTRUCTION?
Marx and Engels’ eventual solution to the ‘ideological hegemony’, contradiction and legal
oppression in the capitalist epoch is the heralding of a classless Communist state, following the
violent and revolutionary overthrow of the economic forces and relations of bourgeois
production. Significantly, this differed from Marx and Engels’ vision of the ‘withering away’
i.e gradual dissolution, of the State, and by inference, its legal institutions following the
culmination of the class struggle, with Pashukanis further expounding that the law itself would
“wither away to be replaced by administration.”72
In this section, I shall analyse the ‘withering away’ assertions from both an ideological and
materialist perspective, in order to ascertain two pressing issues; whether they both maintain
the thesis that law will dissipate or whether there is any room for Sypnowich’s ‘socialist
jurisprudence’ following from a positive, not negative Marxist reading of the law. The effects
on this claim of the Soviet Union totalitarian rule, under the guise of promoting Marxist
doctrines, shall also be examined.
1) IDEOLOGY:
Pashukanis recognised the Marxist critique’s charge as finding expression not merely in
“refuting the bourgeois individualistic theory of law, but also consisting of analysing the legal
form itself.”73This ideological critique is concerned with the law’s illusory role, clearly
asserting that its forged links with the capitalist productive relations which promote class
hegemony render it “theoretically inconceivable”74 under a classless and communist society.
Marxism in its ‘orthodox’ form, as Sypnowich states, assumes the “material abundance under
socialism”75 and the lack of “interpersonal conflict”76 under socialism which automatically
erases the need for legal mechanisms of mediation. Coupled together, the resource-exploitation
and scarcity-for-future-generation’s issue, alongside a pessimistic view of the inevitability of
conflict under socialism pertaining to the distribution of these resources, renders law’s presence
a necessity. Thus socialist jurisprudence appears significantly plausible, following a positive
reading of the law as providing “rational procedures for ordering interpersonal relations under
socialism.”77
2) CLASS MATERIALISM:
Sypnowich makes broad claims that this conception of law as a mere oppression tool, despite
its maintenance of the withering away thesis, actually makes room for socialist jurisprudence
and is consequently metamorphosed into the “most anti-legal”78 argument. This admission,
72
73
E.B Pashukanis, Law and Marxism, A General Theory, (Inks Links 1978) 34.
74
C Sypnowich, ‘The “Withering Away” of Law’ (1987) 33 Studies in Soviet Thought 318.
75
76
77
78
coupled with the provisional transition period Marx made room for in his pre-socialist
description of society, i.e., the dictatorship of the proletariat period, necessarily “narrowed of
the scope of law”79, leaving only the most oppressive post-capitalist legal features which
enabled the Stalin-led legitimisation and justification of Soviet Union legal oppression. This
concession, in line with the ideological conflict issue necessitates the retention of legal
institutions and practices, at least in the period before socialism is finally achieved.
EFFECT OF SOVIET UNION TOTALITARIANISM:
The authenticity and fairness of interpreting Marx’s theories from this post-cold War rhetoric
standpoint, and the numerical proclamations of the dangers of law-void ‘socialist’ regimes is a
fate Marx shares with Nietzsche, whose works were often associated with fascism. The
overwhelming negative nature of Marx’s remarks about the legal and political superstructure
has led to increased queries pertaining to whether a more positive interpretation of the content
and form of law could permit the existence of law in the socialist period.
Marx’s materialist theories, despite their immense negativity, cannot be faulted for the desire
to do draw attention to, and hopefully eradicate the problems entrenched within the legal
system of capitalist society. Whether this was successfully done is contestable; but as Marx
asserted, it is crucial to shift, as capitalism did, and examine the society one exists in, in order
to “change it.”80
79
80
K Marx, Theses on Feuerbach: Theses 11 In: Marx/Engels Selected Works, Volume One (1969 Progress
Publishers) 14.
BIBLIOGRAPHY
PRIMARY SOURCES
Marx K, Capital III (Lawrence and Wishart 1959)
— — Alienated Labour In: Wootton D. ed. Modern Political Thought. (Hackett 1996) 790-97
— — and Engels F, Communist Manifesto (Progress Publishers 1969)
— — German Ideology In: Wootton D. ed. Modern Political Thought (Hackett 1996) 804-11
— — Preface to A Contribution to the Critique of Political Economy (4th edn, Lawrence and
Wishart 1981)
— — Theses on Feuerbach: Theses 11 In: Marx/Engels Selected Works, Volume One (Progress
Publishers 1969) 14
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Cain M and Hunt A, Marx and Engels on Law (Academic Press Inc 1979)
Chambliss W. J, Crime and the Legal Process (McGraw-Hill 1969) 10
Dicey A.V, Introduction to the Study of the Law of the Constitution (Macmillan 1915)
Easton S, Marx and Law (Ashgate Publishing Company 2009)
Pashukanis E.B, Law and Marxism. A General Theory (Pluto 1978) Chapter 4
Pashukanis E.B, Law and Marxism, A General Theory, (Inks Links 1978)
Popper K, Conjectures and Refutations (4th edn, Routledge and Kegan Paul 1972) 35.
Renner K, The Institutions of Private Law and their Social Functions (Routledge and Kegan Paul 1976)
56
Tucker R, The Marxian Revolutionary Idea (George Allen and Unwin 1969) 56.
Wacks R, Understanding Jurisprudence An Introduction to Legal Theory (2nd edn, OUP 2009) 213-
224.
Wolff J, Why Read Marx Today? (OUP 2002)

2. JOURNALS
Barendt E, ‘Is there a United Kingdom Constitution?’ (1997) 17(1) OJLS 137-146
Boyer G.R, ‘The Historical Background of the Communist Manifesto’ (1998) 12(4) The Journal of
Economic Perspectives 151-174
Fuller L, ‘Pashukanis and Vyshinskii: a study of the development of Marxist Legal Theory’ (1949) 47
Mich. L. Rev. 1159
Head M, ‘The Rise and Fall of a Soviet Jurist: Evgeny Pashukanis and Stalinism’ (2004) 17(2) Canadian
Journal of Law and Jurisprudence 269-294.
Ireland P, ‘History, Critical Legal Studies and the Mysterious Disappearance of Capitalism’ 2002) 65
Modern Law Review 120-140.
Sypnowich C, ‘The “Withering Away” of Law’ (1987) 33 Studies in Soviet Thought 305-32
Todd N, ‘Ideological Superstructures in Gramsci and Mao Tse-Tung’ (1974) 35 Journal of the History
of Ideas 148-156
Vincent A, ‘Marx and Law’ (1993) 20 JLS 371-97
3. LEGISLATION
Law Reform (Personal Injuries) Act 1948 s 1(1)
Unfair Contract Terms Act 1977, s 2(1)
Unfair Term in Consumer Contracts Regulations (UTCCR) 1999
4. CASE LAW
R (Corner House Research) v Director of the Serious Fraud Office [2008] UKHL 60
BP Zambia PLC v Chipalo [2014] ZMSC 21
5. WEBSITES
Office of Fair Trading (OFT), ‘Guidance on Unfair Terms in Health and Fitness Club Agreements’
(OFT.Gov, March 2002) <http://www.oft.gov.uk/about-the-oft/legal-powers/legal/unfair-
terms/guidance#.U1ZAmPldVPI> accessed 22nd April 2014
Selected Works of Mao Tse-Tung, ‘On Contradiction’ (Marxists. Org, 2004)

<http://www.marxists.org/reference/archive/mao/selected-works/volume-1/mswv1_17.htm> accessed
25th April 2014
6. REFERENCE MATERIAL
Routledge-Cavendish Law Cards, Jurisprudence (5th edn, Routledge-Cavendish 2008)

Marxist Perspectives of Law in Capitalist Society: A Reflection of Contradiction, Inequality and Ideology?

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Marxist Perspectives of Law in Capitalist Society: A Reflection of Contradiction, Inequality and Ideology?

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Marxist Perspectives of Law in Capitalist Society: A Reflection of

Contradiction, Inequality and Ideology?

It is imperative to elucidate the distinction between ‘orthodox’ jurisprudence from those

MARXIST JURISPRUDENCE: PROBLEMS

* Legal Intern, Wangari M. & Associates, Nairobi, Kenya.

Electronic copy available at: https://ssrn.com/abstract=2960611

Jurisprudence commentators in modern advanced western societies negate the importance of

Electronic copy available at: https://ssrn.com/abstract=2960611

A devastating consequence of this hoarding is the promotion of competitive tendencies

BASE AND SUPERSTRUCTURE:

It is important to acknowledge the dualism entrenched within Marx’s class-mired presentation

ISSUE: LAW-- ‘AUTONOMOUS OR FUNCTIONAL’?

Marx manipulates language in a paradoxically ideological manner, making use of powerful

ANALYSIS OF THE LEGAL SYSTEM: CONSEQUENCES OF MARX’S THEORIES:

As Barendt lamented, when Parliament blatantly pursues a policy disregarding fundamental

EFFECT OF SOVIET UNION TOTALITARIANISM:

Austin J, The Province of Jurisprudence Determined, (Cambridge University Press 1995)

Chambliss W. J, Crime and the Legal Process (McGraw-Hill 1969) 10

Easton S, Marx and Law (Ashgate Publishing Company 2009)

Wolff J, Why Read Marx Today? (OUP 2002)

Vincent A, ‘Marx and Law’ (1993) 20 JLS 371-97

Unfair Contract Terms Act 1977, s 2(1)

Unfair Term in Consumer Contracts Regulations (UTCCR) 1999

Selected Works of Mao Tse-Tung, ‘On Contradiction’ (Marxists. Org, 2004)

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