Marxist Law – Introduction
Karl Marx views the notion of Marxist Law from the following perspective, “Law, morality, religion, are to [the proletariat] so many bourgeois prejudices, behind which lurk in ambush just as many bourgeois interests.”1
The assumptions basic to Marxist legal theory—first, that God does not exist; and second, that humans are evolving animals—deny both the possibility of an absolute moral code and the existence of any law grounded in any authority other than human authority. V. I. Lenin says, “In what sense do we repudiate ethics and morality? ...In the sense in which it was preached by the bourgeoisie, who derived ethics from God’s commandments. We, of course, say that we do not believe in God.”2
L.S. Jawitsch, a modern-day Marxist legal theorist, maintains Lenin’s denial of anything supernatural, saying, “There are no eternal, immutable principles of law.”3 Therefore, Marxist law cannot be based on anything other than human rationality. In Lenin’s words, “We repudiate all morality taken apart from human society and classes.”4
Marxist Law – The Origin of Law
Marxists explain that law and human rights arise from the interactions of human beings within social structures that contain economic class distinctions. Class divisions within societies create conflict and disorder and therefore law (and the state) comes into existence to deal with this conflict. According to Engels, “In order that these...classes with conflicting economic interests, may not annihilate themselves and society in a useless struggle, a power becomes necessary that stands apparently above society and has the function of keeping down the conflicts and maintaining ‘order.’ And this power, the outgrowth of society, but assuming supremacy over it and becoming more and more divorced from it, is the State.”5
The state that rises to maintain order within society perpetuates the conflict as a dominant class wielding power over classes with less power. Lenin explains, “The State is an organ of class domination, an organ of oppression of one class by another; its aim is the creation of ‘order’ which legalizes and perpetuates this oppression by moderating the collisions between the classes.”6 Laws are thus imposed by the state to quell these disturbances.
Marxist Law – The Origin of Law
In the Marxist view of law, the bourgeoisie and the proletariat are the two classes involved in the struggle for power. Societies that allow the bourgeoisie to make moral decisions and formulate laws are unjust societies.
In the Communist Manifesto, Marx denounces bourgeois law as nothing more than a reflection of the desires of that class. Speaking to the bourgeois, he says, “[Y]our jurisprudence is but the will of your class made into a law for all, a will, whose essential character and direction are determined by the economic conditions of existence of your class.”7
Bourgeois law is oppressive because it is based on the concept of private property, and thus laws are created that promote unequal rights. Capitalism cannot create equal rights for all because the very nature of the economic system creates haves and have-nots. Cornforth states, “There cannot be equality between exploiters and exploited.”8
A capitalist society that creates unequal rights based on property and class leads those with fewer rights to protest in the form of lawlessness. Engels explains, “The contempt for the existing social order is most conspicuous in its extreme form -- that of offences against the law.”9 Society, therefore, is more responsible than the individual for lawlessness. Indeed, criminals need not feel remorse for their actions because the unjust bourgeois society leaves them no alternative but to lash out against it.
The Marxist solution to the unjust society and lawlessness is to overthrow the bourgeoisie, thus allowing the proletariat to make the laws. The legal system that promotes the interests of the working class is called proletariat law. Jawitsch believes, “Complete success in the masses’ struggle for their democratic rights and liberties can only be achieved by overcoming monopoly capital’s economic and political domination and establishing a state authority that expresses the interests of the working people.”10
According to Marxist legal theory, the working class may break capitalistic law if such an action is in pursuit of equality. According to Lenin, “The revolutionary dictatorship of the proletariat is won and maintained by the use of violence by the proletariat against the bourgeoisie, rule that is unrestricted by any laws.”11
Marxist Law – Law and Socialist Economics
Once the revolution of the proletariat has succeeded, the new Marxist law (socialistic law) will reflect the desires of the working people rather than those of the bourgeoisie. Law based on the will of the proletariat will create a society that is less exploitative than that based on capitalist bourgeois law. According to Jawitsch, “An anti-exploiter tendency is what characterizes the special features of all the principles of the law of socialist society in most concentrated form.”12
The will of the proletariat becomes the basis for all rights, laws, and judgments, thereby negating natural law, God, or any absolute moral code. Howard Selsem explains, “Marxism, which has been so often accused of seeking to eliminate moral considerations from human life and history emphasizes rather the moral issues involved in every situation. It does so, however, not by standing on a false platform of absolute right, but by identifying itself with the real needs and interests of the workers and farmers.”13
Marxists see law based on the will of the proletariat as flexible rather than inconsistent, a flexibility that denies a need for a comprehensive legal system. Pashukanis writes, “We require that our legislation possess maximum elasticity. We cannot fetter ourselves by any sort of system.”14
Marxist Law – Law Withers Away
Because Marxists believe law arises from class conflicts caused by property, the need for law itself will dissolve once a communist society is established. Since only one class (the proletariat) will then exist, the need to promote order between classes will no longer remain—in effect law will have become unnecessary.
Marxists believe that when classes are abolished, all people will create and live in an environment that promotes harmony. Criminal activity will be almost nonexistent since the catalysts for anti-social activity—injustice and inequality—will no longer exist. Plamenatz says that in a communist society crime will be “virtually unknown” because “motives will be less urgent and frequent, and the offender will be more easily brought to his senses by the need to regain the good opinion of his neighbors.”15 Unfortunately, more than 5,000 years of recorded history disproves the probability of such a utopian plan working.
Marxist Law – Conclusion
Both Marxist law and Secular Humanist law are grounded in a denial of the existence of God and a belief that we and our social systems are evolving. These assumptions require Marxists and Secular Humanists to rely on legal positivism as the basis for law. The Marxist version of legal positivism adds the unique feature of class-consciousness to the state’s role as the will of the ruling proletarian class. Furthermore, the working class must rule under the guidance of the Marxist-Leninist political party, giving the party final authority on morality and law.
When those adhering to a specific ideology arbitrarily determine a system of law, laws will be created that are prejudiced against those with opposing views. In such a society, freedom disappears, as each citizen is held hostage by the arbitrary laws of the state.