Marxism and Critical Legal
Studies
Classical Marxism - Idealism
Karl Marx and Friedrich Engels were writing in the wake of
classical German philosophy.
Classical German philosophy was idealist in character, most
important here was the idealism of George Wilhelm
Friedrich Hegel.
Idealism held that progress, intellectual progress particularly,
came via a process through which our thoughts about the
world became more and more adequate to the nature of
reality.
Reality is completely knowable: Idealism is cognitivist (we
can cognise the true nature of things) an anti-sceptical.
Classical Marxism - Idealism
Not just in terms of nature or physical reality, but also society,
politics, ethics and law.
The same anti-skeptical thinking applies to these areas, our
understandings become more adequate in history.
This proc ess is driven by the fact that inadequate understandings
carry contradictions and tensions, while initially a certain
understanding will look attractive and complete, its limitations
will become more evident until it can no longer be sustained.
This leads us to revise our understanding, move to a new way of
understanding things that overcomes these limitations and new
forms of practical activity. And so this “dialectical” process goes
until we reach a fully adequate understanding of things.
Classical Marxism - Idealism
Dialectical process: seemingly adequate conceptions arise, they
carry contradictions and tensions which eventually undermine
those conceptions, rendering them inadequate and thus we are
forced to develop new understandings.
Marxists often characterise this “dialectic” as a process of thesisantithesis-synthesis but Hegel never put it that way.
Hegel says this “dialectical” process is at play in the development of
social, ethical, political and legal thinking.
Thus any political, social or legal form we encounter is based on
our ‘ideas’ about society, politics and law.
Human practices, such as politics and law, are based on human
thought, human thought, just as much as human practices, have a
history.
Classical Marxism - Idealism
Notice though that thought is not operating in a vacuum, it
is responding to the world, to real problems and crises that
emerge as a result of the practical application of an
inadequate idea.
It is not, as Marxist often seem to suggest, simply a matter of
ideas interplaying with ideas – as if thought occurs in some
vacuum wholly broken off from real experiences.
For Hegel the advent of a liberal democratic constitutional
state (particularly a constitutional monarchy), we have
reached the most fully adequate expression of the political.
Does he side more with Rawls or with Nozick? Well he
claims unregulated markets produce extremes' of wealth and
poverty and destabilise society. So. Rawls!
Classical Marxism
Marx and Engels offer a different conception of historical progress – not
idealism, materialism!
A thesis about the way concrete conditions, material conditions, drive
historical change and progress: it’s a historical materialism not a historical
idealism.
Ideas do not (at all) drive history, ideas are driven by material changes and
these material changes are what drive history and progress.
The most significant feature of material conditions driving social changes
were “the means of production” = the material or non-human aspect of
production.
Also significant are the relations of production = the human element of
production, particularly class relations.
Changes in the means of production will bring changes in the relations of
production, changes in the way society is organised.
Classical Marxism
For Marx and Engels history moved with changes in means of production, by
changes in the way we materially produce and the class relations that are
required by this.
The interlinked means of production and relations of production are the
economic base of any social form.
All the other aspects of society, its political system, its legal system, the mores
and norms that are acceptable within it, so on and so forth, all rest on that
societies economic base and are a reflection of that.
In order to understand, say, a legal system, one had to view it in light of the
economic base on which it rested.
The base and the superstructure! The base is material or economic, all other
social, cultural, political and legal phenomenon rested on that base. Marx
uses the metaphor of foam floating (superstructure) on the sea (base).
Classical Marxism
Marx says that its not that the consciousness of human
beings changes history rather that history changes the
consciousness of human beings = our understanding and
orientation on the world does not drive historical change
rather historical changes drive the way we understand and
orientate ourselves on the world.
Historical changes are driven by economic and material
shifts that move according to their own internal logic.
Marx and Engels see this picture of the world as running
counter to idealism with its emphasis on ideas (or their
understanding of idealism)
Classical Marxism: Critique of
Ideology
We can extract from the above a clearer sense of the key Marxist notion of
ideology.
An ideology is a total framework of understanding the world and social reality,
Ideologies are group specific. The ideology of any particular group is not
something that is at the front of consciousness, its kind of subconscious
It’s a systematic and interwoven set of beliefs, attitudes and values – it has a
thoroughgoing normative content, that is, we judge actions and claims to be
right and wrong, good or bad in light of the ideological framework that we
hold.
These beliefs and values we hold as true but cannot demonstrate to be true,
indeed its never occurred to us that they require demonstration, some of them
are indemonstrable and we would be puzzled if we were asked to justify our
commitment to them
Classical Marxism: Critique of
Ideology
Social forms produce ideologies, frames of reference that structure the beliefs,
values and norms of those who inhabit them and help to reproduce that social
form.
As the economic base changes such ideologies crumble, the inconsistencies,
contradictions, inadequacies become evident and we lurch into a new social
form and a new ideology develops.
Historically: we began with an egalitarian or classless society, with communal
ownership; distinct classes eventually develop whereby one class emerges as
dominant and controls the means of production, subordinating others to its
interests. This creates class antagonisms which are quelled through institutional
and ideological mechanisms that support the interests of the dominant classes:
This remains until there is a shift in the mode of production allowing for
previously subordinated classes to come to dominate production in a more or
less revolutionary move. The old institutions and ideology start appearing as
inadequate, its inconsistencies are exposed, it no longer appears a rational or
natural order.
Marxism and the Law: Making
it Explicit
Law is part of the institutional regulation of class society, at any point in
time then law will be in the service of the dominant class.
It is part of the superstructure and so it reflects at an ideological level the
needs of the base
Law is not an autonomous discourse or phenomenon, the product of a kind
of self-contained legal reasoning, that is, if the law is, as Marx and Engels
claimed it to be, in the service of the interests of the economic base.
Those who believe that law is an autonomous discourse are fetishising the
law, by attributing to law a reality and a power it does not have.
When we fetishise the law we think about it as a free standing discourse,
that is an independently existing discourse, with the power, through its
particularly legal mode of reasoning, to determine the just bounds of legal
authority, and so to shape social reality.
Marxism and the Law: Making
it Explicit
Law is thus not autonomous, but is bound up with economic
factors: both in terms of the nature of the law and in terms of
any particular legal judgment, one must understand the way
material and economic conditions underwrite and shape law.
Probably overly reductive – law reduced to economic
relations. One might accept the idea that law is nonautonomous, that there are political, ethical, social, moral and
economic factors that influence it.
The core of the Marxist critique is that law is a tool of social
domination used by the dominant class in any point of
history to maintain and advance its interest
Marxism and the Law: Making
it Explicit
For many Marxists the bourgeois state tends to express
itself via law and legislation, but behind these
expressions lie the class interests of the bourgeois.
Again such a line of thinking can be seen to be a little
excessive.
Criticisms: Marxist analysis, it seems to reduce history
to a by-product of material conditions, leaving the
contribution of thought and ideas out of the picture.
Economic reductionism in history and in law.
Critical Legal Studies
CLS inherits much from realism but infuses realism with a Left
politics and a strong critique of Liberalism (mainstream). It seeks
to ‘trash’ Liberalism.
CLS sees law as ideological – it caters to and legitimates
established social and economic interests (the establishment).
It takes the message of Realism – that law is politics – seriously
and to its more radical conclusion. As such it has helped to
inform feminist legal theory and critical race theory of law.
However CLS, while strong in the second half of the 20th century
has lost influence over the last two decades.
Critical Legal Studies
CLS moves off from the idea that law is indeterminate, the rules
themselves are unable to generate right answer and so judges are
forced to draw on political factors in their decisions.
Judges conceal, however, the political influences of their
decisions in elaborate, post hoc, rationalizations of their decisions
in light of the rules. They make it appear ‘objective’ and a
product of what the mainstream would consider ‘legal reasoning’.
Thus law is an instrument for advancing political ends, political
goals, however these goals are bound up with protecting and
preserving an unjust status quo (it is ideological in the sense that
the judgments conceal, via a subterfuge, the social and economic
determinants of the decisions reached).
Critical Legal Studies
Because the law was bound up with ideology and defense of an unjust
status quo CLS sought to delegitimate the law.
This is far more radical than the realists – who sought to use law to
advance the values of American Liberal Democracy (social reform
orientated on liberal values).
But to CLS it is these values, the values of American Liberal Democracy,
that were the problem. They believed that notions like the rule of law
and legal rights, which the legal system seemed to promote were also
illegitimate, they particularly thought that the notion of value free legal
decision-making was a sham.
To understand the CLS approach to these things one has to understand
the postmodern and Marxist influences on it.
Critical Legal Studies: PostModernism
Post-Modernism is hard to encapsulate for two reasons: a) its proponents
hold different, sometimes conflicting, views; b) their writings are
notoriously obscure.
The three most important representatives are: Michel Foucault, Jean
Francois Lyotard and Jacques Derrida.
The first thing to note about post-modernism is that it arises as a
reaction against modernism, particularly the notion that there can be
objective and universal standards of truth and justice, and particularly a
faith in reason to achieve progress in history.
Modernism thus expresses a faith that reason, via knowledge of objective
and universal truths can drive social progress and they tend to read
history as being a story of progress via reason and rational insight.
Critical Legal Studies: PostModernism
One of the most important products of Modernism is liberalism and the
liberal democratic outlook, which was seen as the key political vehicle of
social change/advancement.
Post-Modernism is born out of the tragedies of the first half of the 20th
century, the idea that reason and science do not issue in moral progress,
the failures of liberal democracy to deliver its emancipatory claims of
social, moral or political progress.
Yes it had expanded knowledge but no it had brought little improvement
in our social, moral and political condition.
Thus the claims of modernism were built around a myth, a myth built, as
all myths are, around a narrative. It was a ‘grand theory’ built around a
‘grand narrative’.
Critical Legal Studies: PostModernism
One of the things meant by ‘grand theory’ or ‘grand narrative’ are the
kind of theories offered by Plato, Aristotle, Descartes, Kant or even Marx
– theories that claimed to have found an absolute or certain foundation
for knowledge. One which could be the basis of social reforms.
Post-modernism rejects as authoritarian any claim to have discovered a
clear criteria for truth, because all such claims become totalizing.
For instance, the claim that the methods of science are the sole methods
for discovering truth and thus the sole means for knowledge production
(scientism) essentially renders all human life subordinate to the
deliverances of science – literature exposes no human truths, its just a
form of entertainment, art might move but informs us of nothing.
Everything that is not science is thus just a curiosity perhaps to be
enjoyed but not to be taken seriously.
Critical Legal Studies: PostModernism
Post-Modernism thus seeks to combat such totalising views or in
Lyotard’s words “wage war on totality” no matter what the nature
of the totality: Religion, Science or Politics.
They embrace a view of things as radically plural and so they reject
any monolithic discourse, particularly through asserting the value
of otherness and difference. They champion the marginal, the
marginalised, the rejected, the outcasts, the freaks, beggars and
whores.
It is a whole-scale rejection of the entire tradition of intellectual
life as it was known at least up until the 1940’s.
Critical Legal Studies: PostModernism
They also insist on the socially conditioned nature of all thinking and because
all thinking is socially conditioned it is impossible to ever arrive at truth or see
reality as it is.
There is no independent viewpoint from which we can check to see if theory
mirrors reality. All view-points are ‘experienced’ and all experience is
constructed, they do not reflect how things are they just show us a perspective
(Religion, Science, Politics all just perspectives).
What replaces the Enlightenment ideals of rational unity is a vision of the
world that as a radical multiplicity of perspectives and different viewpoints,
none of with is ultimately ‘real’.
This feeds into a political claim: politics, as we know it, is another totalizing
discourse. Those in power seek to marginalize and reject any viewpoint that
does not concur with its own ideology. Like all forms of ideology, it seeks to
either negate or render irrelevant any thing that challenges its power –
particularly different views, different perspectives.
Critical Legal Studies: PostModernism
Intellectual life, no less than politics, is an attempt to render those who differ
from you irrelevant, an attempt to oppress in the name of some totalizing view
and deny the right to be different.
As such theorists like Michel Foucault attempt to show how all dominant
viewpoints achieve their dominant status through games of power that
marginalize and oppress difference.
Thus dominant paradigms have power not through merit but through their
ability to oppress, the status quo then is not the way it is by nature, it is a
contingent state of affairs that could be otherwise.
But Foucault connects power to knowledge: they are two sides of the same coin.
What we take to be objective knowledge is just a set of claims that have been
authorized by those in power. They call it truth but really its their perspective,
their interpretation. But by asserting their perspective as truth they preserve
their power.
Critical Legal Studies: PostModernism
Post-modernism attempts to challenge the dominant discourse by being a
voice for the marginalised, a voice for those who lack power and by
promoting pluralistic perspectives or marginal perspectives.
It attempts to move thinking and discourse from a ‘politics of
universalism’ to a ‘politics of difference’.
The Politics of universalism insists on universal rights, undifferentiated
and sees these based on universal features of human nature.
The Politics of difference asks us to recognise difference and particularity,
particularly that different groups have different needs and so uniform
treatment might fail to bring justice.
It identifies discrimination as flowing not from exclusion from common
rights but from failure to recognize difference and an ignoring of unique
identities.
Critical Legal Studies: PostModernism
This gives a uniquely post-modern account of ‘justice’ (scare quotes): in
order not to discriminate against marginal and powerless groups we
might have to treat them differently.
The liberal politics of universalism tells us to subject them to the same
standards as all others, but this itself seems to ignore their different
views, different perspectives and demands that they assimilate to the
dominant paradigms in order to be recognized.
But because there is no ultimate truth, no ultimate objectivity we have to
be careful about the term ‘justice’ – justice is always particular to the
perspective of the group. What we call ‘justice’ is just what appears to be
justice from our perspective, from other perspectives it might not appear
the same.
That is why we have to be attentive to the needs and views of the
marginal, to appreciate what a just resolution is in their eyes.
Critical Legal Studies: PostModernism
One final aspect of post-modernism relates to the linguistic turn. Postmodernists take a view on language whereby no term can be understood
in isolation from other terms – meaning is always relational, I cannot
understand ‘up’ without understanding ‘down’, I cannot understand
these things without understanding the notion of ‘direction’ which I
cannot understand without understanding the notion ‘space’ and so on.
As such meaning is a function of the difference between concepts, or
understanding the difference between concepts. The Meanings of words
do not arise because of their relationship to things in the world, their
relationship to reality, they gain their meanings in relation to other
things.
Because of this language cannot be used to describe reality objectively,
different languages describe different realities.
Critical Legal Studies: PostModernism
Derrida radicalizes this, he asserts that within the system of signs that
constitute a language there is no stability, that meanings are inherently
unstable, that words and texts have many and often conflicting meanings.
None of which can be more authoritative than the others.
There is not final ‘right’ interpretation of anything, we can never know
the meaning of anything, always indeterminate.
But this is something to be embraced, for it means that we are allowed
‘free play’ with texts and meanings (imagine a statute), we interpret the
text from within our own perspective and its as fully valid as any other
interpretation.
Meanings are only kept stable by power, by certain groups asserting its
own interpretation as correct. Again this feeds a politics of difference and
a rejection of a universal truth (universal justice) in the name of
difference.