Running head: MARX’S INFLUENCE ON THE JUSTICE SYSTEM 1

Marx’s Influence on Justice System

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MARX ‘S INFLUENCE ON JUSTICE SYSTEM 2

Law is the body of rules that regulates behavior of individuals in society and prescribes

sanction to be administered by the state. Since different societies have different values and

norms, they have different laws. As such, the legal system in a society is determined by its

social, economic and political systems or structures. According to the Marxist legal philosophy,

society is divided into two main structures; the ‘infrastructure’ or the ‘base’ and the

‘superstructure’. The infrastructure is composed of the economic system of a society while the

superstructure is made up of the legal and political institutions in conjunction with the religious

and philosophical systems (Amarasinghe, 2021). Based on this, Marxism views the legal system

to be dependent upon the economical system which is in turn dependent on the means of

production available and the body of people that control it. This paper supports the Marxist

proposition that the law is made with the interest of the capitalistic class in mind and hence

reflect the interest of that class. It will make use of examples where the laws in operation favor

the interests of the bourgeois at the expense of the working classes

Firstly, let’s consider the foundation of the modern legal systems of many countries

worldwide. When we look at the history of the United Kingdom, we will find that their laws

have evolved from the humble beginnings where the king was the chief judge, juror, and

executioner. Over the years the systems developed into a system where the king appointed noble

men or feudal lords to act as his representatives in the various courts where matters were heard.

For instance, a noble would be appointed to head criminal trials while another would deal with

matters relating to equity. A keen look at this will lead one to the conclusion that, since the king

owned all the land in the kingdom, he was able to make himself solely responsible for instituting

all the laws in the kingdom. He was also able to exercise the power of a judge as well as the

enforcer of the law. The king hence played the role equivalent to modern legislature, judiciary
MARX ‘S INFLUENCE ON JUSTICE SYSTEM 3

and executive combined. We can make two important observations from this. The first one is

that the origin of the legal system of the United Kingdom and the entire commonwealth was

based on ownership of a factor of production (land). Secondly, that transfer of the factor of

production also led to the transfer of lawmaking, judgement and enforcement responsibilities as

observed in the act of the king allowing feudal lords to deal with legal issues in far off lands the

king had previously awarded to them. Since it can be concluded that the right to make laws was

inherently present in the right to ownership or possession of the land, the laws made had to

reflect the interests of those in control of it. Conversely, all people with subservient claims to the

land were not represented in to the law making process and therefore the laws did not reflect

their interests.

A careful observation of the exercise of criminal justice in those times is also very

informative of the intersection between capitalist interests and the law. According to Weis

(2017), the concept of criminal selectively is as old as the modern justice system. Criminal

selectivity in early modern time referred to the differential treatment of criminals depending on

their respective class. Additionally, criminal selectivity went hand in hand with primitive

accumulation which led to the creation of original capital. Weis (2017) expounds on criminal

selectivity by dividing it into two concepts: under- criminalization or over-criminalization. Both

were used in the creation of a bourgeois and working-classes and led to the accumulation of

original capital. Under-criminalization mainly applied to feudal lords and the bourgeois when

they perpetrated violent acts during conquest (murder, torture, enslavement, and land

expropriation). On the other hand, over- criminalization applied to the acts of commoners

included “criminalized survival strategies (vagrancy, begging, prostitution), coarse crimes (rough

crimes against property), religious crimes (heresy, witchcraft, contraception, infanticide), and
MARX ‘S INFLUENCE ON JUSTICE SYSTEM 4

resistance to land expropriation” (Weis, 2017). It can then be concluded that the law was only a

tool in the hand of the owner of the capital to ensure continued subordination of lower classes to

perpetuate capitalistic interests.

After that dive into the historical foundation of modern legal systems and their

capitalistic underpinning, let’s look at how modern laws perpetuate class inequality by favoring

capitalistic interests. Naturally, I will analyse laws regarding contract, property, and business

forms to reveal if there is a given inclination to favor capitalistic interest. Firstly, the law of

contract covers the agreement between two parties in the exchange of goods or services.

Although the contract is an agreement between the parties involved, the state has the authority to

adjudicate in case a dispute arises between them. For example, if parties A and B are involved in

a contract for the exchange of various services for money, there are both obligated by law to

abide by the terms of the contract. When one party, say A, the seller of services, ignores or omits

an important detail in the preparation of the product they are in breach of the contract. In thatcase

the other party (B) is empowered to seek legal redress in court. The purpose of the law, therefore

is to offer certainty to business merchants and by so doing encourage capitalistic endeavors

(Deakin et al, 2017). Therefore, it is clear that the law of contract exists mainly to protect and

promote capitalistic interests.

Secondly, the law of property mainly protects the right of an individual to possess or own

valuable movable or immovable property. This law provides the owner of the property with the

right in rem in the property which excludes all individuals from laying claim on it whether a

contract exists with the owner of the property or not (Deakin et al, 2017). As such, the main aim

of this law is to ensure that capital is well protected, ensuring that capitalistic production
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proceeds without any hindrances. Therefore, it has a similar effect to the law of contract

(protecting capitalistic interest).

Thirdly, we have laws regulating various business forms. For example we have the law of

cooperatives, laws regulating partnerships, and laws regulating companies. These laws serve to

ensure that business is conducted appropriately while also protecting the interests of the various

members, partners, or shareholders respectively. Because these business associations are

established under the various legal instruments, they can own property, enter into suits, dispose

of property and enter into contracts. By doing this, they can conduct business without uncertainty

(Deakin et al, 2017). As such, they can perpetuate capitalistic exchange without fear of loss or

incidence of loss on any party involved. Therefore, are made specifically to secure capital and

promote its growth.

The laws regulating companies deserve a closer look because of the prevalence of

corporate structures in our modern society and their importance to capitalistic endeavors.

Companies in most jurisdictions are regulated by a comprehensive law in most cases named the

Companies Act which provides the requirements for the formation of a company and rules for its

operation. The rules are put in place to protect all the parties involved in the operation of the

company and those affected by its activities. Parties involved in a company include shareholders,

directors, employees, suppliers, independent contractors and customers. Although all the parties

enjoy protection from the law, the protection is not equal. For instance, the shareholders and

directors are more protected by the law than ordinary workers. Historically, this increased

protection of shareholders and investors did not exist. However, changes have been made to the

law of companies which have increased the benefits of the investment to the shareholders while

reducing their responsibilities to the company (Kapczynski, 2019). An example of such a change
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is the introduction of the separate legal personality of the company. Previously, the company was

not distinct from its owners before the introduction of the clause around 1837 “in which the

long-standing understanding that shareholders were beneficiaries of the whole business was

replaced by an assertion that their interests were as beneficial as legal owners of the surplus

created by company assets, but not the assets themselves” (Johnston & Talbot, 2018). The clause

eroded any silver of a sense of corporate responsibility the shareholders may have felt and

replaced it with a desire for more revenue. Therefore, the law became an instrument of furthering

the interests of the capitalist with little or no regard for company employees or consumers.

The limited liability clause was also established around the same time to protect the

investors. The clause ensured that individual property of investors would be left alone in case of

insolvency of the company. Consequently, capital available for companies grew exponentially

because they were able to access funds from many investors who could now invest in corporate

outfits with little risk to their other investments (Johnston & Talbot, 2018). It is clear that the

introduction of the two clauses mainly benefited the owners of capital and hence supports the

Marxist proposition that the law is a tool mostly used to promote capitalistic interests.

International law is also as supportive of capitalistic interests as municipal law. To reach

that conclusion, we need to look at the international practice of “land grabbing” that involves the

acquisition of thousands of hectares of land in developing countries by wealthy countries or

wealthy foreign citizens (Özsu, 2019). In most circumstances, these deals for the acquisition of

such pieces of land are legally protected under the laws of property, law of contract and laws

regulating investiments. However, it does not mean that they are equitable to the people who are

left landless in poor countries that mostly depend on subsistence production for their sustenance.

A good example of such a deal happened in Ethiopia when the national government made a
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bargain with an Ethiopian-born Saudi citizen for the 50-year lease of a 10,000-hectare piece of

land in 2010. What is interesting in this deal is the fact that the government of Ethiopia

consented to administer the agreement and handle any disputes that arose in its federal courts.

Additionally, the government agreed to provide additional benefits such as tax exemptions and

repatriation of profits and capital gains (Özsu, 2019). Notably, the government of Ethiopia was

also tasked to ensure that the acquiring company would “enjoy peacefully and trouble-free

possession of the premises and …be provided adequate security, free of cost, for carrying out its

entire activities in the said premises, against any riot, disturbance or any other turbulent time

other than force majeure” (Özsu, 2019). In the years following 2010 when the deal was made the

government has leased an additional 4,000 hectares to the Saudi company that was obtained

through the relocation of pastoralists without their input or their consent.

A similar acquisition of land happened in Liberia where the Liberian government signed

a deal to concede 220,000 hectares of land for 63 years for the cultivation of palm oil and rubber

and production of goods for export. The acquiring company was allowed to have its security

services on-site and to request the relocation of settlements. Over the years the company has

been able to develop the land but it continues to receive strong opposition from locals who were

not consulted during the entire exercise and who complain that what they receive as payment for

jobs on-site is so little (Özsu, 2019). From both of these land acquisition deals, we can observe

several things. One is the fact that the deals are legal under local law of contracts, law of

property, and other applicable laws. Second, there is no consideration or consultation of

subsistent farmers who occupy the land. Thirdly, there is no consideration of doctrines of

international law such as the right to food, right to development, right to collective self-

determination, and the sovereignty over natural resources. Conversely, all it takes is a contract
MARX ‘S INFLUENCE ON JUSTICE SYSTEM 8

that vests lands rights to a foreigner, leaving the host disenfranchised. Therefore, it can be proved

that the law favors the interests of capitalists, and has little or no regard for the subsistence

producers.

In conclusion, this paper has discussed several examples that illustrate and support the

contention that the law mainly reflects the interests of the capitalists. The first example involved

delving into the historical foundation of the legal systems of most of the western world and the

commonwealth where it was observed that the right to make or enforce law lay with the monarch

or noblemen who represented him because they had ownership or possession of factors of

production in the form of land and capital and labour. Additionally, it was observed that the

concepts of criminal selectivity allowed feudal lords to get away with serious crimes while the

poor people were punished for relatively minor crimes. The second example involved a look at

the law of contract, law of property, and the laws regulating business association, which revealed

that they are all meant to protect capitalistic interests. Lastly, a close look at the practice of ‘land

grabbing’ revealed that the acquisition agreement does not take into account the interest of

natives even though the agreements are legal again supporting our contention that are made to

reflect capitalistic interest.

References

Amarasinghe, K. (2021) Marxist ideology on Law. Journal homepage: www. ijrpr. com

ISSN, 2582, 7421.
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Deakin, S., Gindis, D., Hodgson, G. M., Huang, K., & Pistor, K. (2017). Legal institutionalism:

Capitalism and the constitutive role of law. Journal of Comparative Economics, 45(1),

188-200.

Johnston, A., & Talbot, L. (2018). Why is modern capitalism irresponsible and what would make

it more responsible? A company law perspective. King's Law Journal, 29(1), 111-141.

Kapczynski, A. (2019). The law of informational capitalism. Yale LJ, 129, 1460.

Özsu, U. (2019). Grabbing land legally: A Marxist analysis. Leiden Journal of International

Law, 32(2), 215-233.

Weis, V. V. (2017). Marxism and criminology: a history of criminal selectivity. Brill.