Karl Marx

May 6, 1818 Trier, Germany March 14, 1883 London Jurisprudence January 2006 George D .Pappas, Esq., LL.M. International Center for Legal Studies

Karl Marx provides a different perspective about what is meant by the law. However, in order to appreciate what Marx said, it is important to place the concept of law within Marxs overall socio-economic and political context. For Marx, the crucial distinction he introduces relative to other theorists is his ability to weave together the interdependence of not only ideas (which he throws many brickbats at) but the role and effect of economic relations, political structures and history. For Marx, none of these things can be separated from any discussion of law. It is also important to understand that Marx is not a legal theorist attempting to answer narrow questions of what the law is or ought to be. For Marx, the ability to awaken the oppressed class (the working class or proletariat) consciousness to the mystification of not only religion but to the overall power structure and its fetishes brings to light the overwhelming power of his theory. In a sense, then, Marx is not a legal theorist but a writer who is able to demystify the tools of societys power brokers, brokers who for Marx are nothing more than mere manifestations of historical class struggle.

I will review and discuss the role of class struggle in Marxs overall framework. For now, however, it is vitally important that students understand that when they read Marx that they also contemplate how history, politics, philosophy and market relationships all shape the nature of Marxs class struggle.

HISTORICAL DIALECTIC History is an important element in Marxs theory of class struggle. Unlike philosophers or legal theorists, students should note that Marx did not believe in absolute truths or in ideology per se. In other words, history is not a constant ideological absolute similar from generation to generation. To appreciate Marxs view on this, one has to acknowledge that Marx built his theory on the foundation of prior theories. In passing, do not be mislead into thinking that Marx introduces new philosophical idea of power per se. What distinguishes Marx is his natural and unique ability to integrate many prior theories into a new mosaic of history and class struggle. For example Hegal, and the young Hegelians of the early 19th century postulated that history is transformation of thesis, antithesis and synthesis. Otherwise stated, man is constantly faced with challenges and conflicts which transform his current state or existence (e.g., the thesis). Man strives to achieve spiritual freedom through such conflict. Conflict, in the Hegelian sense, produces the spiritual truth (synthesis) through this dialect of thesis-antithesissynthesis. What Marx saw in Hegal was a framework that he was able to transplant into the realm of economic relations.

Why did Marx consider economic relations so important? For Marx, economics reactions, that is, the relationship between the forces of production and the means of production, created the class consciousness within society. Otherwise stated, a consciousness built on this historical materialism. Marx believed that environmental factors (economic relations) rather than mans philosophy or individual consciousness determined his class consciousness. Therefore, change the nature of the economic relations and you change how workers consciously view y their place or role in society. For example, a factory worker versus a corporate executive will have different views or values based not on their internal belief systems, but because of their economic station in life. A worker will view fairness perhaps in terms of how much he is paid per hour whereas a corporate executive will see fairness from that vantage point of how much his stock option will be in terms of how profitable his company will be. Profitably clashes with the workers interests since cost minimization contributes to profit maximization. In the example above, I not only demonstrated a different socio economic consciousness between a worker and a corporate executive, but we were also able to see class conflict between each parties notion of what is fair. Hold on to that thought as we progress through this lecture.

So, having introduced the role of Hegelian dialectic, we are able to see the beginnings of how Marx sees the movement of history. That movement is defined in terms of class struggle within and between each generation. That class struggle, for Marx, is shaped within a dialectic that has as its genesis, the role and affect of how the forces and means of production influence the class consciousness of each class.

Stripping away the mystery of the dialectic is probably one of the most profound achievements that Marx introduced into the field of sociology and economics. Marxs ability to de-mystify the role of so called neutral economic laws, religion and politics, is in my view, his crowing achievement. Do not be mislead, however, into believe that since the fall of the Berlin Wall since 1989, that Marxism has arrived dead on arrival. Cast any such verdict on the repressive regimes in Eastern Europe and the former Soviet Block for their warped sense of what Marxism was, and never forget that they used Marxism, much like Western Leaders like President George Bush use Democracy (hint: Im not a Republican), as a label to justify their political goals. Political and Economic theories are hijacked everyday, and what Marx provides is a perceptive set of spectacles by which to see through many smoke screens cast before us through history.

Clearing the Dust Damasking the Mystery

Power is control. Propaganda is designed to control. Great propaganda is mystery wrapped over a population to the point where they are unable to consciously know how or if they are being controlled by higher forces. Marx demystifies the power of the capitalist class by setting up a basic framework of BASE AND SUPERSTRUCTURE

The base is composed of the working class (the proletariat), while the superstructure is the edifice of institutions that emerge to protect the economic and political interests of the

capitalist class. Fore example, what appears to be universal truths of economic relationship, such as profit, wages, and capital (investment), seemingly appear to operate according to some neutral (i.e., natural rate of unemployment as postulated by the Phillips Curve) economic philosophy of how capitalism should work. Once a nation or community buys into the static permanence of employment, wages, profits and investment, then the next step toward economic growth as a good in of itself is not difficult to achieve. Economic growth or economic expansion become aims of society because it is assumed (perceived) that the forces which unleash profit also unleash fairness, justice and happiness within society. Anything that attacks profit maximization is seen as threatening jobs, threatening wages, threatening investment, and ultimately, threatening the very existence (nay, happiness) of society. What is not seen in this superstructure is how institutions are drawn up to entrench or protect these interests. A fundamental institution within the so called Superstructure is the legal system.

Laws Neutrality

Unlike the Greeks, HL Hart and Kelson for example, Marx would not see law as being something to observe per se in terms of how it operates. For Marx, the crucial question is what role does law play? The issue is not whether it exists it does for Marx. The issue is not whether judges make law by rules of recognition or through political or social influences ala Dworkin; Marx by default acknowledges that laws are made. He is not concerned with how they are made. He is not concerned with whether they are followed in the common law tradition, for Marx, the key question is what role does law

play, and by extension, how does the myth of laws neutrality support the mystification over the working class of laws fairness or exploitation. If you understand where Marx is coming from in terms of how he views the law, then you will begin to understand why you cannot separate history, sociology and politics from the question of what role law play.

Marx viewed laws central role in Capitalist society as being a tool of power. Power in terms of developing laws that not only control (protect) economic interests such as property or land, but laws that also fooled the masses into believing that laws must be respected since that is the law. Note how Hart looked at the same effect, namely, he

examined in part, whether people believed in the law rather than whether they interpreted the law. See how Harts narrow focus merely looks at the intersection of whether people respect the law (i.e., believe in the law). Hart does not even cite or examine the issue of the laws role in terms of class relationships or even struggle. Marx, already decades ahead of Kelsen and Hart, takes the notion of law well beyond a narrow assessment of the is and the ought of the positivists vs. natural theorist debates.

For Marx, the question of law is not a theoretical one, but a historical and practical one that lives within the confines of class struggle. To understand the law and its role, therefore, one has to understand the dynamics of what is termed class struggle by Marx. You have to dive into Marxs analysis of how the modes of production dictate the class relationships. Once you understand this, then youre in a position to examine Marxs so called Superstructure and see how it consciously and unconsciously builds up an

institutional system within society to exploit the workers. This superstructure is supported by mystifying (fooling) the masses into avoiding important questions of what the role of law is per se, and instead, keeps the proletariat overwhelmed with laws apparent neutrality. By keeping workings focused on wages rather than whether profits or profit accumulation is a fair product of their labor is an example of mystification. Feminist Jurisprudence, for example, has also looked into this mystification by questioning the apparent belief that contract law is fair and neutral. Take for example, the simple bargain theory of contract. The law assumes that so long as two or more parties intend to form a contract, and that they both have the capacity to bargain by age, that any contract formed within this relationship context is not only legal, but fair. In terms of fairness of contract, the modern day laws of the US (e.g., UCC Code), Canada, and the UK (Sales of Goods Act) have reined in some of the contractual abuses by imposing implied terms such as the covenant of good faith; however, even this good faith limitation assumes that woman and men enter into relationship on the relative equal footing. Marx would argue that contracts formed between a wage earner and a corporation are by themselves unequal. The wage earner may agree to the terms and conditions of contract through necessity, whilst the corporation agrees to the contract (e.g., employment) because the wage earner has accepted the lowest wage, etc. So, what appears to be fair and neutral, contract law, can in fact, according to Marx, be used to exploit the unequal position of workers. You dont have to be Marxist to agree with this position as Feminist theories have also reached similar conclusions through non-Marxist assessment. The goal here is to rattle your sense that laws per se are neutral without any social or economics impacts on the parties.

Marxs Historical Evolution from Feudalism to the Classless Society

While Marx draws a picture of how the bourgise (the capitalist) class create institutions to protect and entrench their economic power through law, let us briefly examine the evolutionary stages that Marx describes to in order to examine, at least in Marxist terms, how society transforms itself from feudalism to the eventual classless society.

In the first stage, Marx starts with a feudal society. Feudal relations simply describe power held by lords or landlords in an agrarian society where land is the most visible attribute of power. Surfs or peasants are forced to pay rent to the landlord in exchange for both their right to cultivate the land for food and to receive protection by the landlord against outside invaders. Surfs were often times required to serve in the army of landlord also in exchange for living on his lands. It was hardly an equal relationship.

Eventually, through agricultural improvements in productivity through technological breakthroughs in crop rotations, tilling, plowing and enclosures peasant surfs, especially in England, were able to produce more food than was necessary to feed the peasant population. Eventually, surplus food production required less and less peasants to work the land to produce the same output of food.

As surplus food emerged, so did surplus labor. While it was difficult in England for individual serfs to simply leave the land and travel to another town or village since they

could be flogged on the spot if they left their lord without permission, a surplus labor pool did eventually provide the basis for a population migration during the 1600s and 1700s. Marx saw in this migration, the second stage of economic transformation. Marx saw the beginnings of Capitalism.

Once peasants became workers, a new material relationship began to develop between master and servant. In short, master became employer and servant became worker. Workers now offered their labour in exchange for wages. Employers became capitalists whereby power was exemplified by profit maximization and productivity through technological breakthroughs. Marx observes the dawn of a different kind of relationship, a relationship based on a materialistic nature. This material nature was composed of the relationship between the forces of production (worker and employer) and worker and machines. For Marx, a new breed of consciousness emerged during this capitalist stage. Worker consciousness was born out of the economic relationship between worker (wages) and capitalists (profits).

Marx held that capitalist class would progress through a period of time where more and more workers would find jobs in factories. As more and more workers were employed, capitalists would increase the volume of their business and also profits. Eventually, business activity grew through the surplus labor of the worker. Surplus labor was not a new theory developed by Marx, but it a theory he used to highlight how capitalism eventually exploited workers. Somewhere, Marx equates surplus labor as an example of exploitation upon workers. For Marx, it was immoral or wrong, for capitalists to keep

more and more of the surplus labor and thus profit. Marx believed that as capitalists accumulated more and more surplus profit, that the distance and economic inequalities between worker and capitalists intensified.

Surplus labor expanded to the point where capitalists wished to protect and entrench the system that created their wealth. For Marx, capitalists were no fools; they developed a system that created new wealth that moved from landownership to capitalism. The former created surplus labor, and the latter created surplus profit. Marx saw how the capitalist stage crated institutions in the guise of law to mystify and thus entrench their exploitation of the workers. While I will not dive into the subject matter of religion, many would draw significant parallels with how religion is used in the same way to mystify an uneducated populace for control purposes. In a nutshell, education, namely, the ability to read (e.g., hence the advent of the printed bible) spelled the eventual fragmentation of the Catholic Church. Education will also figure prominently in the Marxist theory, but more on that later.

Laws that protected land ownership, like the law of contract, developed to institutionalize the material relationship between peasant and landowner, worker and capitalist. With the advent of industrialization, writers such as Adam Smith postulated that the Wealth of Nations was based on the division of labor and free markets.

Economics and commerce began to develop a whole set of theorys such as supply and demand, international trade, currency valuation and eventually,

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economic growth (e.g., the wealth of nations) built on profit maximization. The Economic theory in the 19th century that emerged would describe the theory of the firm. This theory quantified how to measure individual firm profits. The intersection of the average cost curve and the marginal cost curve became the mantra of every Victorian capitalist.

In a nutshell, Marx described how the capitalist system, especially in England, became focused on profitability as the Holy Grail to attain national power and social happiness. But Capitalism also had a dark side, a side that Marx was able to penetrate with accurate vision that separated him from all prior theorists.

Marx was able to discern within capitalism the inevitable genesis of exploitation that would alienate workers from capitalist as the surplus profits accumulated more and more. Eventually, according to Marx, as workers developed sense of their economic class consciousness, they would rise up and revolt against the capitalist class once their economic exploitation reached a certain boiling (e.g., revolutionary) point.

What Marx did not highlight during this capitalist stage is that workers would also have to become more educated in order to keep producing more and more goods. As technology expanded and became more sophisticated, so too would workers need to gain the ability to read and write. This educational transformation in of itself provides the envitable feature that helps workers not only appreciate their class conciseness, but also to develop the ability to organize into unions of power. Marx preceded Joseph Alois

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Schumpeter (February 9, 1883 January 8, 1950) Capitalism, Socialism, and Democracy.

Schumpeter saw the envitable destruction of capitalism built in its very success, but unlike Marx, not through Revolution, but through gradual socialism. The success that would ultimately destroy capitalism, according to Schumpter, lied with the ever increasing educational standard of the worker.

Part of the growing gap between worker and capitalist was the ability of the capitalist to develop an institutional and legal superstructure that mystified (and entrenched) the materialistic exploitation of workers. Laws were seen as absolute truths to be respected in and of themselves; however, Marx shows that such laws were nothing more than the product of raw power bent on finding legal justifications for their new economic positions in society. Courts were seen as places of justice, where laws neutrality was applied evenly between parties, but behind the creation of the law, were the legislators, and judges who used a new lexicon to define law and equity to support the status quo. Laws of land and contract were the most visible aspects of what Marxs theory of power and exploitation.

What makes Marx unique is his ability to unearth the mystification of these laws and institutions upon the working class. The capitalists class no longer had to forcefully threaten workers to the factorys; capitalists found a way to morally and legally justify a

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system that gave them control and power. Marx postulated that eventually, after a great deal of economic exploitation, workers would be able to see through this superstore smoke screen to organize and eventually overthrow the capitalist superstructure through revolution.

Marx believed that the revolution that would overthrow the capitalist class was evitable. It was this inevitability that distinguished Marx. He develops a theory that postulated the envitable rise and fall of capitalism. Part of this theory, unlike earlier philosophers and legal theorists, took away the absolute and abstract value of social theories by replacing them with a view of history (and the future) that said that the history of man has been the history of class struggle. Struggle defined by each periods material relations. It was the material relationship that defined the class struggle. It was the material relations that created the class consciousness of each historical period. For Marx, the economic relationship forged the internal class consciousness of man. This differed from Greek Philosophers, and later day theorists, especially legal positivists such as Hart, in that philosophy before and even after Marx, attempts to dismiss the material world as the genesis of mans consciousness, of mans truth. Marx's criticisms about these other philosophical approaches was their attempt to show that eternal truths preceded mans emergence, and that such universal truths were constant over time. Marx criticized this focus on universality and timelessness of philosophy because such theories completely dismiss the effect and reality of how economic (material relations) forge mans self and mans consciousness.

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Revolution

Marx postulated that capitalism would eventually be overthrown in a violent revolutionary stage after the workers rose up to destroy the economic superstructure created by the capitalist class.

Marx believed that after the violent overthrow of the capitalist class, that a classless society would emerge, not based on economic exploitation, but based on a shared sense of communism. Equality of justice and equality of wealth would be distributed throughout society. It is this last stage of Marxism, which appearing so utopian, has proven to be the most difficult to realize.

While in theory Marxs appears to show how the internal contradictions that led to Capitalism downfall will materialize, it appears that his next stage into some type of Utopian society is more difficult to realize. It is fairly easy to see what Marx envisions, that is a classless society, however, a classless society assumes so much about human kind that one would think that Marx, after exposing how ruthless man is by nature in terms of power and exploitation, would somehow be able to cleanse itself of this human defect and perfect human society after the revolution. Critics of Marxism, especially since the fall of the Berlin Wall in 1989, point to the downfall of the Soviet Empire as proof that Marxism is a failed theory. Critics point to Cuba to show how a communist stated cant even feed its population. What all criticism fails to show, however, is how successful Marxism has been in changing the way we view mans understanding of his

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self, not based on his own internal viewpoint, but based on his conditioning derived from the material nature of his world. Marx was the first to use a sociological examination to unearth the dynamics of how capitalism started, progressed, and perhaps will (may) fall. Marx was the first real social scientist that took an examination of mans world from a conceptual castle in the sky, and grounded man on detailed observations of the real world not to explain what is or ought to be, but to explain what capitalism and the relations such a system developed, did to affect mans consciousness of himself.

Perhaps Marxs most notable and perceptive observation was the demystification of how capitalism uses law to create the myth of laws neutrality to propagate laws justice. Marxs ability to use social and economic contexts to examine the role of law, rather than observe what the law is or ought to be, is his most distinguishing legacy. Do not view Marx as a legal theorist since he is so much more. View Marx as a social scientist who, in great measure, reduces law to a tool by those in economic power to exploit the masses.

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