MARX

Non-conventional legal theories: looking at law from ‘outside-in’.

The Establishment: a term emerged in the 1950s, used to refer to the usually conservative, social and political groups that exercise power in all aspects of society.

Anti-Establishment groups opposed these values; saw law as part of the ‘Establishment’; radical legal theories emerged which sought to change ‘the system’  these legal theories were based on the ideas of Karl Marx.

Marx’s theories are radical because they go back to the origins of a way of thinking, and argue for fundamental change.

Marx’s social theory

-A simple change in mode of production will trigger a revolutionary change in all facets of society

-Hegel’s dialectic:

  • A stable situation (thesis)  destabilised (antithesis)  replaced by an improved or better outcome (synthesis)
  • E.g. the Establishment (thesis)  the anti-Establishment  society we live in now

-Marx adapted Hegel’s dialectic into ‘materialism’ – explaining historical change out of the realities of human existence

-Marx’s materialism concerned on changes to economic conditions of life, through changes in the mode of production

Economic change leads to massive social upheaval

-Economic forces = base or infrastructure

-All other aspects of society = superstructure

-5 epochs, where change was driven by alterations in the mode of production, and the consequences for social practice and organisation

  • Primitive communism  slavery  feudalism  capitalism  communism

An example: shift from feudalism to capitalism: see next page

The Class Struggle

  • Changes in different groups or ‘classes’ in society
  • Class structures have an economic basis, which was based on the ability of the class to control and exploit their property
  • During capitalism, only classes able to exploit property were the landowners and the merchant class (bourgeoisie);
  • Ordinary working class (proletariat) only had their labour to sell
  • A class struggle between the merchants and the workers will ensue when the workers realised they were being used by the capitalist system to make money for others, and how they were alienated from their true nature (freedom held out by the assumption of equality)
  • As a result, capitalism will be replaced by communism, where
  • all ppl would be fulfilled
  • class system is abolished
  • private ownership of property no longer exists
  • political structures, religion and the law no longer needed
  • state as an institution to maintain the system of capital no longer needed

Alienation

  • Where the working class is unable to or is powerless to fully realise their own lives
  • E.g. no direct connection btw work you produce and the income you receive from it
  • Consequences of alienation: self-alienation from your true nature – unable to reach full potential as a human being

Capitalism and law

  • Industrial Revolution led to dramatic affects on life and social forces
  • Marx concluded that the values of liberalism (incl freedom, rights and equality) were the tools of oppression and exploitation of workers

Law falls into the superstructure

  • Law is not seen as the separate or distinct entity in conventional legal theory
  • Marx saw law as having a role in maintaining and facilitating the economic interests of the system in which it functions
  • Any laws designed to improve workers were subverted by employers
  • Law is used by individuals to assert their rights against each other
  • Law is effect, began to speak the mind of capitalism

Ideology

  • Legal consciousness: ideas about law isn’t out there, but instead reflect the interests and needs of the economically dominant group (social consciousness/ruling ideas); we accept these ideas w/o realising we are accepting the ideology that suits the dominant group’s agenda
  • Law is the key to reproducing social consciousness
  • On the popular level: law tells us how to behave in acceptable ways
  • On the conceptual level: ruling ideas are expressed in our assumptions about liberty or freedom of speech

(law tells us how to behave, but also privileges some ideas over others)

The way these ideas are reproduced (unconsciously) is called HEGEMONY (also see MLT below)

Analysing law using Marx

Classical Marxist analysis

e.g. Ansett employees entitlements claim

(see attached photocopies)

Criticisms of Marx

  • Law should be at the base instead of in the superstructure since no economic activity can be carried out without law
  • Marx’s political ideals have failed in practice, so his entire theory is rubbish
  • Law as a unified, logical and rational system is ignored by Marx. It is wrong to suggest that law will privilege economic values for the benefit of capital
  • Marx did not effectively theorise law – his ideas are therefore irrelevant to law
  • Many ideas driving social values came from workers, not the ruling class
  • In the 20th/21st centuries, capital is shared between more individuals and welfare initiatives are dropped in favour of the re-emergence of a new kind of laissez-faire liberalism. Law is no longer used to redress imbalances in society. Marx failed to foresee this aspect.

Marxist legal theories (MLT)

Critical Theory

  • Knowledge: ‘facts’ cannot be preformed, nor can they be objectively determined and value-free. CLT seeks to trace the origins of those facts.
  • Society: individuals are enmeshed w/i the social and historical web in which they’re situated and connected. CLT wants these inter-subjective rltnships and connectns to be made explicit.
  • ‘(Con)fessing up’: Everyone observing the world is the product of their history, society and other contexts – so ‘objective’ observations will be affected by these factors. CL theorists need to identify and establish their own theoretical position.

Hegemony

  • Developed by Antonio Gramsci, relying on Machiavelli, Pareto and Marx
  • Gramsci argued that ppl consented to the interests of the dominant class, but not because they were told to. The dominant class use their cultural power to dominate through a subtle negotiation process. This process is called ‘hegemony’
  • More effective ways for the values of the dominant class to prevail is through law, the media, social values and beliefs

2 examples:

  • The blunt instrument approach: seeks to show how law was used to coerce the working class and to support the dominant class’s own interests (incl. moral interests)
  • EP Thompson’s relative autonomy model: disputes some fundamental ideas of Marx: 1) law is part of the base or infrastructure 2) law will always be used to deny the interests of ordinary ppl 3) there are stable class structures – Thompson saw class formation as an ongoing process

WEBER, DURKHEIM AND SOCIOLOGY

Sociology emphasises on empirical methods to help develop policy and alter assumptions.EXTERNAL approach towards law

Some specific sociological legal theories use sociology as a basis on which law is critiqued, while others use it to develop sociological legal theories that aim to improve the development of doctrine

Marx, Weber & Durkheim

  • What is the role of law in society? What are the effects of law on individuals?

Marx / Durkheim / Weber
View of society / Social conflict / Social cohesion / Individualism & capitalism
Role of law / Superstructure maintaining base / External index symbolising social solidarity / Law assists capitalism, especially rational legal systems

Durkeheim

  • A cohesive primitive society had a mechanical solidarity between its members
  • As societies modernise, a new type of social cohesion is needed to bring together the more fragmented, individualistic needs of the society Organic solidarity
  • Law reflects or tracks the essential characteristics of society
  • Why external? The nature of law differs according to needs of that society

Durkeheim’s social cohesion and law

Mechanical / Repressive law / Organic / Restitutive law
Primitive
  • Prehistoric and pre-agricultural
/ Change in law reproduces essential aspects of social solidarity
  • Criminal behaviour repressed brutally
  • Law’s role is repressive
- Injury
- Deprivation of possessions or liberty / Modern
  • Organic because of reliance on other organs or individuals of that society
/ Change in law reproduces essential aspects of social solidarity
  • Civil law, commercial law, constnl law, admin law
  • Law’s role is to restore the balance between interdependent interests
  • Criminal law would be restitutive rather than repressive

Integrated
  • Similarities among individuals
  • All members performed the same tasks – no division of labour
  • Few specialised institutions
  • Common rituals, assumptions, morality
  • Religion
/ Disintegrated
  • Individualistic
  • Secular
  • Division of labour btw different tasks
  • Diff values and beliefs
  • Stable institutions needed to balance out the wants of individuals
  • Social controls needed to limit wants
  • Contractual solidarity

Stable society
  • Society unchanged by change in its members
  • Collective consciousness from society
/ Consensus
  • Individuals had to rely on each other
  • Collective consciousness now abstract

COLLECTIVE / INTERDEPENDENT INDIVIDUALS

Weber

  • “Bourgeois Marx”: attempted to free social thought form the influence of economic imperatives, places individuals at centre of society
  • Law:
  • is externally guaranteed by the probability that it will be supported by physical or psychological coercion
  • will bring about conformity or redress
  • will be applied by a group of ppl adapted for that purpose

(sounds like Bentham and Austin!)

  • Only rational legal systems, processes and practices could ensure the develpmt of capitalism.

Weber’s typology of law – internal modes of thinking

How legal rules develop / Substantive / Formal
External criteria
  • politics, ethics, religion
  • individual cases
  • emotion or faith
/ Internalcriteria
  • rules and procedures for all decision-making exist in the system

Rules and procedures used to decide cases / Irrational / Rational
Rational / Irrational

The legal form most suited to capitalism would result through the adoption of formal rationality

The characteristics and elements of Weber’s typologies of law

Characteristics / Who / Legal systems
4th stage / FOMRALLY
rational law /
  • systematised elaboration of law
  • abstract principles
  • integration of all legal propositions
/ professionalised administration of justice / European codes
BEST for capitalism
3rd stage / SUBSTANTIVELY rational law /
  • imposed justice through religion or justice
  • non-legal principles used
  • lacks consistency
/ Secular or theocratic powers / Theocracy or justice-based system
2nd stage / SUBSTANTIVELY
Irrational law /
  • case by case, ad hoc
  • merits w/o ref to general principles
/
  • Legal honoratiores
  • Expert knowledge
  • Social prestige
/ English common law
How could capitalism develop in this type of system?
1st stage / FORMALLY
Irrational law /
  • emotional , charismatic
  • trial by ordeal, oracle
  • tests beyond human control
/ Law prophets / Primitive

In addition, bureaucracies would produce the most rational means to administer the law, for the needs of society  formally trained legal profession

The England problem: it is regarded as substantively irrational law in Weber’s analysis. Weber is therefore able to argue that law is not bound to economic forms (cf Marx).

Weber also explains the way legal power is exercised and accepted in society through his theory of legitimate domination.

Weber’s theory of legitimate domination

Legitimate domination / Traditional / Charismatic / Legal rational
Characteristic / Age old rules and powers / Devotion to a person / Legality of enacted rules
Rights of those in authority to issue commands
Method / Substantive, personal / Revelation, empirical / Impartial, impersonal
w/o hatred or passion
Who / Hereditary / Judging in a common law system / Bureaucracy professional
Related typology / Formally irrational
(1st stage)
Substantively rational
(3rd stage) / Formally irrational
(1st stage)
Substantively irrational (2nd stage) / Formally rational
(4th stage)

The rational form of domination coincides with the rational legal order needed to support the development of capital.

SOCIOLOGICAL JURISPRUDENCE: POUND

  • Recognizes law’s social function, rather than being based solely on the adoption of the techniques and methods of sociological research
  • accommodates changes needed to keep law relevant for society
  • seeks to provide an effective, programmed, and systematic way to keep law moving in step with needs of society, through the inter-connected actions of legal academics, the courts, and the profession itself  SOCIAL ENGINEERING
  • law’s role is to facilitate social cohesion

Pound’s method: the theory of interests

Stage One / Stage Two / Stage Three / Stage Four
Finding out what an interest is / List and classify interests / If there is a conflict: weigh and balance interests / New interest: apply jural postulates

Stage One: Finding out what an interest is

What did Pound mean by interests? / How did he identify these interests? / Is an interest the same as a legal right?
Interests are:
  • claims
  • demands
  • expectations
which ppl (individually or collectively) want the law to recognise / He looked to the law only, by:
  • identifying the claims brought to court
  • lobbying the legislature
/
  • Interests are only potentially recognisable by law
  • an interest will only become a right once adjudicated or legislation is brought into effect

Criticisms
  • interests are assumed by Pound to form the data warehouse of society’s needs and wants, but only once they’re brought to law’s attention
  • interests do not com from society as a whole
/
  • this is a very narrow sphere from which interests can be drawn
  • it disregards the ability of sociological or other research tools to provide data
  • it disregards ‘interests’ which have no ‘voice’ and which have never attempted to access the legal arena
/
  • interests are a small pool and cannot adequately inform the legal rights of society or the community
  • the legal rights that will be derived don’t deviate far from the common law method which he criticised

Stage TWO: Listing and Classifying Interests

Individual interests / Public interests / Social interests in…
Personality
  • the physical person
  • freedom of will
  • honour and reputation
  • privacy
  • belief and opinion
Domestic relations
  • interests of individuals & community, both personally and in the institutions of family & marriage
Interests of substance
  • property
  • freedom of industry and contract
  • promised advantages
  • advantageous relations w/ others
  • freedom of association
  • continuity of employment
/ The interests of the State in its own security, honour, and integrity and ability to hold property / General security
  • safety
  • health
  • peace and order
  • security of acquisitions
  • security of transactions
Security of social institutions:
  • domestic
  • religious
  • political
  • economic
General morals
Conservation of socialresources
  • natural resources
  • children and defectives
General progress
  • economic
  • freedom of use and sale of property
  • free trade and industry
  • inventions
  • political
  • free speech and association
  • cultural
  • free science, letters, arts
  • promotion of edu & learning
  • aesthetics
Individual life
  • self-assertion
  • opportunity
  • conditions of life

Stage THREE: interests must be balanced on the same plane, or w/i the same classification of interests. That is, individual interests have to be balanced against individual interests and so on

The first thing that needs to be done is to select the interests that law should recognise (which we have started to identify). The second is the fix the limits of the protection of those interests which law should provide, the third how and to what extent law can effectively provide that protection, and fourthly, the formulation of principles of valuation by which the previous three are to be accomplished. However, like has to balanced against like, so that interests are to be balanced on the same plane, but preferably be dealt with at the generalised “social” level.

Stage FOUR:

  • jural postulates are values applicable to that society at the time
  • jural postulates are found w/i the law itself, used to test new claims of interest – they form broad general abstract principles
  • generalised principles of law at a given place and time: jural postulates are not closed and will continue to develop and change as new claims are brought into law

Certain forms of behaviour in a civilised society assumed by jural postulates:

  • no intentional aggression will be committed
  • people will be able to control for beneficial purposes what they have discovered and appropriated to their own use, by their own labour, and acquired under the existing economic and social order
  • there will be good faith in dealings such as contracts
  • due care is taken not to unreasonably injure others
  • Should a new postulate be recognised?
  • job security
  • collective bargaining
  • workers comp

Criticism on Pound

  • internalised method of social engineering

AMERICAN LEGAL REALISM

Pragmatism

  • Just do it – straightforward and practical
  • concerned with results rather than theories and principles
  • dislikes abstract ‘syllogism’, which gives perfectly logical outcomes but they are divorced from experience (e.g. green dog)
  • law should be tested against experience – a work in progress rather than a set of unchanging preformed rules  Oliver Wendell Holmes: law should be seen in the here and now, not based on past experience

Realism - introduction

  • began to emerge in America in 1920s and 1930s
  • wants the law to respond to the needs of society, from seeking to use empirical research to test doctrine, to overtly acknowledging the role of legal personnel and legal practice in the development of law, and the social effects of judicial decision-making
  • Felix Cohen: if a doctrine or rule did not ‘pay up’ in fact (or experience), the doctrine was ‘bankrupt’ (fails to accord to a legal truth) e.g. the word ‘corporation’
  • Holmes’ ‘bad man’ – What will be the actual outcome of my actions? I don’t care about whether it is a legal or moral thing to do.
  • realism fizzled out by 1960, to be replaced by its two offshoots: the ‘science’ of jurimetrics and judicial behaviourism (attitudes)

What did the realists propose?

Llewellyn

  • functionalist or rule skeptic
  • the institution of law included rules, principles, and values and had an integral role in the survival of the community
  • law has the function of ensuring that the society it belongs to will survive and it has to carry out its tasks, or law-jobs
  • Law jobs: keeping society going
  • Disposing of ‘the trouble-case’: ‘garage repair’ work of society – a continual process of remaking and reordering society  e.g. case law
  • Preventive channelling: changing conduct and expectations with the aim of avoiding trouble  e.g. legislative corrections of behaviour and ppl’s activities
  • Allocating authority: ensures that legal authority and procedures have a real and authoritative basis, through constitutions

IDEAL aspects --