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Marxism is essentially a critique of the liberal ideology and capitalism. It categorizes the society into two groups- the oppressed (proletariat) and the oppressors (bourgeoisie). It views the class conflict in a capitalist society as a product of the clash of material interests between the aforesaid groups. The Marxist theory is regarded as a theory of orthodox socialism wherein any thoughts regarding the constructive function of law in a socialist society are strongly discouraged.
This is evident from the following famous pronouncement of Karl Marx, “The totality of these relations of production constitutes the economic structure of the society, the real foundation on which rise legal and political superstructures, and to which correspond definite forms of social consciousness.”
Engels proposes that law is intimately related to the idea of state and is used as a means by which the two conflicting groups maintain their respective positions in society.
One of the most important products of Marxism is the Marxist theory of law and ideology. Let us examine the same in detail.
Marxist Theory of Law
The objective of the Marxist theory of law is to examine the role played by law in increasing or preserving the prevailing inequality in society. It is different from orthodox jurisprudence and is an “oppositional” critique to liberal legalism.
The main themes of the Marxist approach towards the study of law can be briefly summarized as follows:
- Law is a manifestation of politics
- Law shares an intimate connection with the idea of state and it provides a certain level of autonomy to the state
- Law mirrors the prevailing economic conditions in a society
- Law can be coercive in nature
- Legal rules seek to further the interest of the dominant class
- Law is ideological and legitimizes the ideas of the dominant class
The aforesaid themes of Marxist legal theory and thought give rise to an entirely fresh perspective towards the study of law. It brings to light an aspect that has been continually neglected by orthodox jurisprudence. The sixth theme pertaining to the nexus between law and ideology demands further evaluation since it provides an entirely new perspective towards legal texts and practices which out rightly notable theories of orthodox jurisprudence.
Ideology as Law and Law as Ideology
Law can be said to be ideological in a dual sense:
- As an Ideological Construction- Laws are created within a specific “ideological field” which constitutes of several socially acceptable norms and values.
- As a Significant Bearer of Ideology- The very nature of law serves to reinforce the ideology with which it has been created.
While some may regard ideology as a reflection of the economic interests of a society or as a falsified cognizance, Marxism views it as a set of values and beliefs based on which people think and act. In a given time period, there are several competing frames of reference amongst which one of them comes up as a “dominant ideology”. Such an ideology goes on to constitute what can be said to be the “common sense” of that period. Therefore, it is essentially a touchstone for determining the righteousness of an act.
An act or thought which is in conformity to the dominant ideology is perceived to be natural and right. The purpose of the dominant ideology is to strongly bind the society together into a unit under the leadership of a group of people known as the “dominant class”. The argument put forward by Marxist legal theory is that there is a strong presence of such an element of ideology in law.
The condensation of ideology in law is evident in the content of legal rules. Legal rules offer authoritative legitimacy to thoughts and actions in the following two ways:
- Reading the rules in isolation of its substantive contents indicates the presence of a “generalized legitimacy”. For instance, the Indian Constitution provides a generalized legitimacy to the idea of “rule of law” which is reflective of the dominant ideology of democracy and liberalism.
- The legal rules specifically confer legitimacy upon certain acts and thoughts. For example, a legal rule may be formulated to legitimize bigamy.
In modern democratic legal systems, the law is used as a tool to formalize the process of legitimizing certain social relations. This has led to a general trend of equating “law” with “reason”. Its jurisprudence comprises of the idea that since the nature of law is such that it demands obedience from its subjects, it can be effectively used by the state to maintain social order and harmony. In a political setup, the law constitutes as well as expresses the sovereignty of the state and is, therefore, seen as an “embodiment of the bond between citizen and nation”.
Thus, the Marxist theory of law outrightly rejects the positivist interpretation of legal rules. The aforesaid discussion regarding Marxism and the element of ideology in law seeks to bring forth two interesting points for further study and discussion. Firstly, the doubly ideological character of law may be examined in the context of some of the major contemporary legal developments.
Secondly, the changes that have taken place in the ideological character of law with the evolution of the modern democratic state may be historically studied.
- ‘A Companion to Philosophy of Law and Legal Theory’, Blackwell Publishers (Dennis Patterson, ed.)
- W. Friedmann, ‘Legal Theory’, Fifth Edition, Sweet & Maxwell (South Asian Edition).