UNIVERSITY OF GUYANA

FACULTY OF SOCIAL SCIENCES

SECOND YEAR
JURISPRUDENCE

Marxist Legal Theory

Lecturer: Professor Justice (Retired) Courtney Abel

Introduction

Karl Marx, as one of the most original, influential and seminal modern European thinkers, has given his
name to a comprehensive system, and school of thought, Marxism, encompassing philosophy,
economics, a view of history (historical materialism), sociology, political doctrine, ideology, social
psychology (particularly alienation) as we shall explore, and more.

As an academically trained Jurist and a life-long researcher Marx is universally acknowledged and
recognised as being a talented and original philosopher, theorists, jurists and political (even
revolutionary) activist. He has become internationally known, even celebrated, for his writings and his
seminal contributions to wide areas of his study.

His combined works form an integrated theory in which he comprehensively sought to explain the
growth and development of societies (including law in the emerging capitalism). This is by reference to
comprehensive economic activities giving rise to certain conflicting social relations, including slavery and
indentureship. All of such social relations, according to Marx, tele logically, and ultimately, he posits, has
led to economic and social evolution from the most primeval state, through the current developing and
modern capitalism system, economically and socially divided into workers (the Proletariat) and Capitalist
(the Bourgeoisie). Because of which, because of internal economic and social contradictions, societies,

1
not States, would ultimately pass through a Socialist system of governance, also containing internal
social conflicts, and all of which would ultimately resolve into an ideal ‘communist’, utopian, society.

Marx’s general theory, which postulates that it is by human struggling for survival by interacting with
nature, which is at the base and root of human communities and social existence, and provides the
explanatory power and understanding, of the process of development and change of societies. This
when carefully unpacked, concerns the nature and operation of the economic activities upon
communities, societies and the modern State, that could be found the answer to general jurisprudential
questions about what is law and legal systems. Specifically questions such as: (a) what is law, (b) what is
the nature and function of law (c) what is the significance of law in sciety, (d) what is the relationship
between law and morals, (b) what is the nature of legal obligation, (c) what is the nature of legal rules
and (d) what is the nature of judicial decision-making?.

Marx’s general theory has to be unpacked because in his writings he did not specifically expound on
such jurisprudential questions; but the answers to such questions can be deduced from his general
theory.

His general theory, both ‘materialistic’ and ultimately ‘idealistic’, was constructed by him using the
method of dialectic materialism, involving the idea that law is deceitfully a ‘false universal’ (as it is not
designed to be universally fair, but, is skewed to suit the interests of the ruling class). Instead he
predicts, that by various upheavals, unjust societies will, by stages result in an ultimate, abundant, fair
and utopian ‘Communist State’. In this ‘State’ all economic and social conflicts would eventually
disappear resulting in the State itself withering away, (along with law), as in this Communist State the
interests of the masses would be fully represented, and result in the equitable distribution of resources.

In this lecture I will attempt to unravel, explain and elucidate Marx’s legal theory and its general impact
upon the growth of modern European, as well as contemporary Caribbean, societies.

Early biography of Karl Marx

Karl Marx was born on May 5 th, 1818 in Trier German and Marx died at the age of sixty-four in the year
1883. He later lived, studied in exile in London (largely at the library of the British Museum), where he
was famously buried at Highgate Cemetery.

His parents were Heinrich Marx and Heinriette Pressburg. He studied philosophy and law at the
universities of Bonn, Berlin (where he first got interested in philosophy) and Jena. He married Jenny
Westphalen and had seven children.

2
His early interests were philosophy, history, economics and politics resulting in him journalistically and
politically being associated in Germany with ‘’The Committee of Communist Correspondence’.

Throughout his later writings, Marx had some contacts with modern philosophers on debates of social
sciences and history. He dedicated his fertile and productive life focused on studying and writings on
philosophy, economics, alienation, materialism, capitalism, morality, ideology, politics, and religion and
on revolutionary or emancipatory politics. 

What was Karl Marx reacting to?

The period before Karl Marx’s birth in 1818 as well as his sixty-four years of life on this earth, spanned
major economic, social and philosophical, globalizing developments emanating from within Europe. This
was aided by its European imperial expansionist design in the rest of the world. But alongside the
‘modernising’ and rapidly expanding industrial revolution, were the social upheavals, such as slave
uprisings, including revolutions, within Haiti, Demerara and other slave societies, within France,
between Britain and the USA, and the French Napoleonic Wars.

Marx, as a ‘liberal’ socially minded person, initially identified with, and was at first mildly reacting to the
social inequalities within Capitalist Europe. During his early journalistic engagements, in reporting on the
unfairness of the operation and enforcement of the law in relation to poor people collecting wood from
a privately owned forest, he came face to face with what, he perceived, to be the unjustness and
inequities of the system of governance which then prevailed within Europe. He increasingly more fully
realised that the state was operating in the interest of owners of private property, the latter of whom,
he considered to be the ruling classes’, whose principle object, he considered, was economically
oppressing the masses in order to benefit from their labour. He therefore tried to understand such
inequalities and the societal upheavals which resulted, and the structural issues and developmental
process which was involved, and which he increasingly placed within a principally economic, but also
social and historical context.

Marx in his early writings disagreed with the ‘idealistic’ postulation of the German philosopher Georg
Wilhelm Friedrich Hegel, who suggested that ideas governed social and historical developments.
According to Karl Marx, Hegel misinterpreted the relationship between civil society and the state by
locating equality and universality within the constitutional state (Hunt, 1996).

Marx posited, instead, that it was human’s material conditions, including the right to private property,
which led to social antagonism, thereby interfering with, and even destroying, their natural bond with

3
their labour; and its products, by a process of ‘alienation’ and ‘mystification’, allowing workers to be
dominated and controlled by a process of ‘divide and rule’.

Marx therefore was strongly reacting against constitutional monarchies and even any notion that
political equality can be had within modern states. This was not possible political equality could not be
had without economic democracy, and that any equality in the former situation is merely formal. He was
against such ‘formal’ notions of equality and was all for real, economic, democracy. He therefore was
strongly reacting against any form of capitalism; and any form of exploitation of the Proletariat by the
Bourgeoisie.

Marx’s approach to society therefore utilised a materialist method drawing on man’s relationship and
interaction with nature and the environment (the physical world), by the use and development of tools
or technology, creating an economic (structural) mode of production which then creates certain super-
structural social relationships in its image, including law.

According to Marx, law is the universalization of the will of the ruling class, within Capitalist society, the
bourgeoisie. Thus the State is nothing better and could be no better than the expression, a Committee,
for managing the will and affairs of the Capitalistic class.

Karl Marx/s works can be divided into two phases, the early Marx, (1842 – 1848) and the later Marx
(1859 – 1875).

During the first phrase Marx wrote ‘Debates on the thefts of wood’ (1842); ‘Marx’s critique of Hegel’s
Philosophy of Right (1843)’, ‘On the Jewish Question’ (1844), and, ‘The Communist Manifesto’ (1848).
He later wrote: ‘Preface’ to ‘A Contribution to the Political Economy’ (1859); ‘Grundrisse’; his magnum
opus, ‘Das Kapital’ , and ‘Critique of the Gutha Programme’.

According to Marx’s writings, the world of ideas, including philosophy, morality and law, were viewed as
a secondary, ‘ideological’ superstructure arising from the economic base or structure of human
existence. Marx termed morality and law as a product of the economic and human activities, even
mystification, by the ruling class which varies and reflects itself at each historical stage. He considered
that social development was somewhat deterministic, even teleological, as it was an inevitable
unfolding process that would pass through various stages of development involving: Primitive
Communalism; Slave Production; Feudal, Capitalistic, Socialist and ultimately Communistic modes of
production.

4
A profound difficulty involved in Marx’s writings is, however the relationship, whether deterministic or
otherwise, between the base and superstructure, and which later Marxist (Althusser and including the
Frankfurt School) tried to explain by exploring the idea of ‘class consciousness’.

Karl Marx essentially termed the modern system of Capitalism, as fundamentally involving the
antagonistic exploitation by the dominant of the two great classes within it by an evolved process of
greater division of labour and of mechanization of such production. Those being the owners and
controllers of the developing modern means of production (the bourgeoisie); and those having only
their labour to sell (the proletariat), who in the process and by the very nature and process of such
production, the vast mass of such societies, the workers, who are alienated, from the products they
create.

In his later works Marx developed the idea of ‘surplus value’, or wealth creation, by the dehumanized,
alienated, and oppressed and exploited by the process of the capitalist means of production, which he
considered was in inherently unfair. Thus the Capitalist, forcibly extracts from the workers, the
Proletariat, surplus value which the former appropriates to himself in the process of wealth creation by
the latter, and which is alienated from him, the worker, by the capitalistic mode of production.

Such unfairness, he considered amounted to theft or robbery from workers by the Capitalist, for the
latter’s benefit; which can only be remedied by a total revolution overturning this capitalist system to
usher in a ‘Socialist’ system – with the internal remaining contradictions within this system finally being
further resolved only when ‘Communism’ (almost a reversion to the earlier ‘Primitive Communalism’),
was reached thereby liberating each person within society and enabling them to fully use their abilities
to contribute to it and only receiving from it what they needed.

By this evolving structural process of social change, using the Hegelian argumentative dualistic method
of development: involving a ‘thesis’ conflicting with its opposite, the ‘antithesis’, ultimately resolving
into a ‘synthesis’, by a dialectical or contradictory process, and using the modified, non-Hegelian,
Marxian, notion of the primacy of the economic and social, as opposed to the Hegelian, ideal, method,
Marx, persuasively purported to show, and demonstrate, that a communist society, being the peak of
human development and attainment, thereby would ultimately dissolve all previous exploitative forms
of relationships, with the result that each person would be allowed to merely give to society, according
to their ability and would only receive from society, only what they needed.

What is law?

5
Marx’s position therefore defends a structural and what he described, as a scientific, but nevertheless
instrumental, approach to analysing society, which can in this way may be described as analytical, by
way of jurisprudential theory.

On this basis ‘law’ occupies a specific subsidiary position in a capitalist society, alongside all such similar
ideological constructs of the Capitalist, including, politics, philosophy, culture, consciousness, as specific
examples

According to Marx law is therefore, as already described, an ideological construct of the Capitalist
created and enforced to maintain the unequal society from which they are benefiting.

What is the nature and function of law?

Thus Marx considered that law by its nature and function is merely a formalistic system of mystification
designed to fool, particularly workers, into falsely believing that the total, including the economic
system of Capitalism, is fair and applicable to all persons equally. This is, according to Marx, contrary to
the fact that nothing could be further from the truth.

The mystification is thus achieved, according to Marx, by the State, as well as other Constitutional
processes effectively convincing workers by mystificatory panoply of the law being designed to
theatrically disguise the inherently unjust process by which the law is being used by the ruling classes as
their inherently oppressive instrument to maintain their exploitative class position within society.

What is the significance of law in society?

Marx therefore had an abiding concern to promote economic equality; as he believed that fundamental
and endemic inequality was due to alienation arising within modern society, in no small measure due to
the separation of man from his nature by the capitalist mode of production, involving a mechanical way
of working with and dehumanizing results in the creation of ‘surplus value’ which workers created, and
would be appropriated from him by the Capitalist.

What is the relationship between law and morals?

According to Marx, when stripped of its theatrical trappings, law cannot be separated from morality,
and he believed that the job of the theorist, such as himself, is not merely to interpret the law, but to
actively engage in changing its inherently unjust nature, by helping to emancipate the working classes
from the shackles and bondage an ‘unjust’ system; and thereby to assist in ushering in a ‘Just’
Communist society.

6
Thus considered, Marx considered that abstract and private rights within Capitalism are therefore
"illusory". This would appear to require “not just that we should go beyond the supposed abstractness
of formal moral principles but, in some sense, that we should go beyond morality as such” 1.

What is the nature of legal obligation?

According to Marx, legal obligation, along with legal rules and judicial decision-making, are all part of the
ideological aspects of the Capitalist social system, the superstructure, which always seeking to
legitimized and justify the respective mode of existing economic relationship and divisions of society,
with law and legal obligation, reflecting the respective mode of production – within modern Western
liberal democracies, the Capitalistic system.

According to Marx, legal obligations did not have any objective and independent existence, but is an
ideological construct which is said to have universal validity. He made a significant contribution to the
world and history of ideas, by transforming ‘decision making’ within the Capitalist judicial systems as
representing the personal economic and social issues of the Capitalist, and that notions of ‘justice’ and
‘fairness’ were falsely being promoted as involving the rights of every individual in society. According to
him, individuals could not ever have, within Capitalism, the right to being treated equally before the law,
as the law, representing the power of dominant property owners wielding power, was inherently unfair,
and therefore there was no obligation upon workers to obey the law. Rather the obligation is on the
worker, not to obey the law, and to strive to emancipate themselves from the yoke of an unjust system

What is the nature of legal rules?

As already noted, according to Marx, law is a ‘false universal’, in that it purports to universally and
equally represent legal rules within a fair economic and social system; when in fact it is neither universal
in their design, being targeted to oppress the ruling class; and in their application, such legal rules are
inherently unfair and designed to oppress and keep down working people.

What is the nature of judicial decision-making?

According to Marx the Judiciary are a part of the super structural State apparatus, indeed it is a branch
of the state, drawn from and essentially identifying with the Capitalist system and interests, and all and
any such decisions of Judges, even when they have a veneer or appearance of fairness, functions to
maintain the status quo, and to keep intact the existing unequal and unfair social order.
1
See Michael Rosen’s ‘The Marxist Critique of Morality and the Theory of Ideology’
https://scholar.harvard.edu/files/michaelrosen/files/the_marxist_critique_of_morality_and_the_theory_of_ideolo
gy.pdf.

7
According to Marx, law is therefore an epiphenomena tool that promotes oppression in society.

Marxist jurisprudence is therefore aimed at issuing a critique of the liberal-capitalist perception of law in
society by undermining its bourgeois notions of consciousness.

Weaknesses to the analytical theory

The most obvious flaw to this theory by liberal theorists is that the predictions which Marx made about
the inevitable and heightening class conflict, which Marx felt was imminent and would result in a world
revolution, overturning the social order, has not taken place. This, though it did somewhat start in
Russia following World War I, and continued with the revolution in China and elsewhere, creating an
ideological division in the world, did not result in the collapse of the Capitalist system, as envisaged by
him. Thereby suggesting that the structural and economic analysis were erroneous, and had to be either
abandoned or modified.

Another line of sustained criticism of Marx’s theory is that experience has shown since his writings that
any attempt to establish a socialist system, has failed, as for example within Russia, China and Cuba, all
of which have been marked by the continuation of privileged bureaucracies as a separate classes
accompanied by gross corruption and inequalities, with little or no benefits going to the workers in
whose name revolutions were fought and won (as satirically depicted within ‘Animal Farm, written just
after the war by George Orwell). That as a result there have been much disillusionment, even
abandonment of Marx’s ideas, with, to some extent, the result that his theory needing to be abandoned
or modified.

Some indeed have therefore abandoned it as being merely utopian and obtainable; but others have
considered that Marx’s theory needs to be modified.

But in large measure Marx’s theory has proven to have a significant staying power and resilience by
certain persons, often characterised by opponents, as being seduced by the utopian ideal it espouses,
resulting in significant modification to it coming from among Marxists themselves. The latter has
principally come from among those known as the so-called ‘Frankfurt School’ (the Cultural Marxists)
who are largely German thinkers obviously embarrassed by developments within Germany, resulting at
first from the events of World War I; and then from Hitler’s ‘National Socialism’ resulting in World War
II. These multi-disciplinary group of German thinkers sought to utilise Freud’s theory of ‘consciousness’

8
and the ‘subconscious’, by critically examining and modifying Marx’s theory of ‘false consciousness’ of
the working class. Such modification sought to explain the delays of having, and the distortions within,
revolutionary processes by the Capitalist’s control and manipulation of working people, by their control
of the developing mass media (newspapers, radio, TV, films, internet etc.). Thus, such cultural Marxists,
have attempted to show that by the Capitalist ownership and control of the cultural industries, and by
the latter’s manipulative use of modern means of developing mass communications, they, the Capitalist,
were able to skew the consciousness of the working class into adopting a false view of their own class
interests.

Marx’s contributions to society

At the time of his writing, Marx was termed as a revolutionary due to his seeking to inspire, instigate and
stimulate revolutionary action by working people in Europe and worldwide as he considered that it was
the view of philosophers and theorist not just to interpret the world but to change it. This open call to
philosophers, theorists and jurists to openly and directly be engaged in both understanding the nature
of societies and legal orders, and be actively engaged in its unfolding, is indeed, a significant
contribution made by Marx. This involves thinkers not being an innocent by-stander subservient to the
will of others but actively marrying theory with practice being involved in the struggle for social change
and justice by their direct and committed participation and open involvement to change the course of
history. This is a tall order and a significant contribution which Karl Marx made to modern life and
thinking.

Marx himself actively took part, particularly during the early period of his life, in politics, and many times
being exiled from countries he and his family were living in, by raising issues of economic justice and
morality and to change the world and legal order by writing about class struggles and division within
modern European societies.

Application of his idea to his time and to the contemporary Caribbean

Marx inspired many themes during the times he lived including that of philosophical anthropology,
economic analysis, historical theory, forecasting the future of communism and engagement with the
contemporary society critically.

In Marx’s times, he considered that capitalism was embedded in the nature of the state by norms and
rights which were positivized by state. He considered that legal systems, at the expense of working
people, were dominated by the wealthy land owning class having control of the means of production, by

9
their control of the use of the coercive powers which the state represent, and by their control of the
media, are able to give effect to their class interests and wishes.

Thus, the legal system was designed by those in authority as a result of their power over private
property which they largely owned.

His ideas and postulations during the harshly Victorian age likely led had the effect of people becoming
more aware of the inequalities of the Capitalist system and his writings and stirrings possibly lend weight
to other voices calling for ameliorations in the material conditions of working people, possibly
undermining the likelihood of his predictions of a world-wide revolution taking place.

Contemporary Commonwealth Caribbean society has been significantly impacted by the idea of
capitalism and communism by highlighting the inherently unequal and unfair nature of the Plantation
system as well as, his primary concern, the working people of Europe.

Some of the current notions of equality and attempts to promote a multi-cultural and multiracial
community can therefore possibly be traced back to Karl Marx and his analysis of the structural nature
of Caribbean societies.

Prominent Caribbean historical scholars, including Dr. Eric William and Dr. Walter Rodney, successfully
employed Marxian analysis to explain slavery and the inherently unequal nature of Caribbean societies
post-emancipation; and possibly led them to attempt to change such conditions by actively striving to
create a more equitable and humane post-colonial society.

The idea of Marxist’s legal theory, and analysis of law and morality has indeed dominated the Caribbean
society as we have been attempting to regain values of equality and humanity to develop a new society
(Antoine, 2004). Obvious examples of such attempts can be found in the successful revolution in Cuba,
the short-lived revolution in Grenada and in the popular views of politicians such as Dr. Cheddie Jagan,
Forbes Burnham and Dr Walter Rodney among others in Guyana as well as that of Fidel Castro within
Cuba, Michael Manley within Jamaica and Maurice Bishop within Grenada.

Thus, Caribbean countries have been focusing on rebuilding our societies through incorporation of many
of Marx’s ideas and analysis of contemporary Caribbean societies. One does not therefore have to go far
within the Caribbean to see the effects of the application of Marx’s theory on our society particularly
upon aspects of social development and constitutionality, which can readily be found within existing
ideas and concepts. For example within Guyana it is blazoned within the Constitution that it is a country

10
on the path to socialism; most post World War ii Constitutions, drawing upon Kant’s earlier
philosophical work, but is supported by Marx’s humanism, promote human rights; the putting of
economic rights of working people might even be found in law-making and current notions of justice
and fairness by pointing out inequalities; and more recently following on from Guyana discovering huge
off-shore oil reserves, by the emphasis upon ‘local content’.

Conclusion

In conclusion, Marxist legal theory have indeed been highly influential and it has undoubtedly had a
dramatic effect upon the world. This is regardless of whether it is considered a correct explanation,
description or prediction of the nature of human societies. This is also regardless of whether it is
considered a poor such analysis; or alternatively; that Marx was correct in some ways and not in others.

What is also clear is that his economic analysis of recent slave societies as well as of Capitalism did shed
light on the plight of disenfranchised and other working people. His materialist humanism and mode of
analysis brought into focus their material and psychological conditions, including the wasteful human
alienation which slavery and the factory system and working conditions produces. He also brought in to
focus the structural inequalities of past and modern societies by demonstrating technological advances
was unfairly being led and employed for the benefit of those who had control of the means of
production – which need to change- and the possible outcome if this were to continue.

Marx’s writing, focused on building and improving their lives and to explain the hopelessness of ordinary
workers often felt oppressed by a system which appeared to them to be stacked against them by those
who owned the means of production.

Many such workers are often persuaded that Marx`s idea, that no economic system or class should be
allowed to have a dehumanizing power over the mass of persons, leading to gross inequalities
motivated by greed and oppression.

As such the idea that Marx`s legal theory and jurisprudential thoughts, of law as ideology, by focusing on
a socioeconomic analysis of society, with a materialistic interpretation of society`s development, is often
seen by such workers to be somewhat attractive, by providing hope for the future and an incentive for
emancipation.

References

Antoine, R. M. B. (2004). Waiting to Exhale: Commonwealth Caribbean Law and Legal Systems. Nova L.
Rev., 29, 141.

11
Hunt, A. (1996). Marxist theory of law. A Companion to Philosophy of Law and Legal Theory, 350.

Marx, K. (1973). Karl Marx on society and social change: With selections by Friedrich Engels. University of
Chicago Press.

Marx, K. (2010). A contribution to the critique of political economy. In Marx today (pp. 91-94). Palgrave
Macmillan, New York.

Springborg, P. (1984). Karl Marx on democracy, participation, voting, and equality. Political Theory,
12(4), 537-556.

12