Whenever I read a bad critique of Marxism I shudder. Marxism should of course be subjected to a critique, but only on the basis of what can accurately be described as Marxism. The creation of strawmen, intentionally or unintentionally, is always something that should be combated. Therefore, it pains me while reading otherwise excellent works, to see quotes such as this:
For example, most critical scholars reject the crude Marxist view that the law has the content that it does in order to best serve the interests of the capitalist class. Nor have critical scholars been tempted by the more sophisticated, but still functionalist, premise that the legal system is relatively autonomous because that autonomy is in the interest of the capitalist class. [i]
Such a position is one that seems fundamentally opposed to Marxism. Marxism does not posit that law, or politics is automatically favourable to capitalism, rather it posits that it is the result of a class struggle and the structural relations of an economy. Of course it is argued that at certain points in his life Marx held the view that law and politics automatically reflected the interests of a dominant class, but what Marx thought, or wrote is not equal to Marxism, rather Marxism is a particular methodology. This is the only way that Marx’s account of the legal regulation working day can be explained.
Of course there are those who hold that the law does simply reflect capitalist class interest, but these are often people who simply have no idea about Marxian legal theory. To allege that laws were solely the will of the ruling class is to eliminate the dynamics of class struggle from historical materialism. The Manifesto does not state that all history is the history of class, rather it states:
"The history of all hitherto existing society is the history of class struggle"
If one takes the, apparently Marxist, functionalist view, how can one be consistent with the above? Such a view also means seeing the working class not as a struggling class, making its own history through conflict, but rather as the passive object of history made by the bourgeoisie. Even if every law were made by the ruling class, it would be necessary to show that it was not the result of a class struggle, which would end up being unMarxist anyway.
Of course there are two caveats to this. Firstly, point (4) in my previous post posits that even a successfully “proletarian” law can be fundamentally altered due to the reintegration into a particular structural totality. Hence the regulation and shortening of the working day caused the shift to the accumulation of relative surplus value rather than absolute surplus value. Furthermore, it served to reintegrate the working class into a capitalist framework, assuaging their demands and therefore stabilising capitalism. In this way one might well posit that all laws that do not result in the transcendence of capitalism ultimately function in favour of the capitalist class but this is a good deal more complex than the apparent Marxist functionalism. Secondly, it might well be said that the class struggle account maintains a class instrumentalism and functionalism, in that ultimately the law still serves as the interest of a particular class, and are therefore still an instrument serving as a class function.
[i] Lawrence Solum, ‘On the Indeterminacy Crisis: Critiquing Legal Dogma’, 1987 University of Chicago Law Review 462, at p. 486
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