The legal system the product

According to a sophisticated reading of Marx's theory of historical materialism to what extent is the legal system the product of, or determined by the economic system? Do you think that Marx, on this sophisticated reading, underestimated the significance of law in modern societies? The core of Marx's historical materialism contains a rejection of the largely idealistic philosophies, which credits the human mind with the ability to transcend the circumstances of existence to make their own history1.

Materialism states that human behaviour is determined by patterns of evolution conditioned by external forces, and Marx insists that the consciousness is conditioned by social relations, which inturn are conditioned by the forces of production2. However, it is a problematic when applied to the analysis of law, for legal institutions and rules are often perceived as purposive human creations, the products of deliberate conscious action.

The different readings of theory of historical materialism have to explain how these consciously created laws are ultimately determined by material circumstances, and to what extent the legal system is determined by economics. The basic form of Marx's historical materialism can be explained as follows: the requirements which are vital to sustain the most elementary forms of social life, that is, food, shelter and clothing are met by the exploitation of natural resources through the use of available technologies, i. e. the forces of production.

During the course of production men enter into social relations and Marx reasoned that these relations of production are the basic constitutes of any society. The form of the relations of production will depend on the nature of available natural resources and the knowledge of technologies for exploiting them, the two together being described as the material base3 by Marx. Relations of production then crystallize into groups called classes whose relations are determined by the particular mode of production. As forces of production change so do the relations of production.

Base is the economic structure of society, the sum total of the production relations of the given society. The concept of the basis expresses the social function of the production relations as the economic basis of social phenomena that are outside the sphere of material production. While they are a form of the productive forces, the production relations at the same time determine the content of the superstructural forms5. The superstructure is the sum-total of the "ideological" social relations that arise on the given economic basis, i. e. the sum-total of social relations that are consciously created by people.

Marx made a clear distinction between "political and legal superstructure" of a society and the "definite forms of social consciousness" which correspond to the superstructural institutions. Although superstructural institutions are consciously created by people, this does not mean that their ideas and aims are part of these institutions, any more than tools consist of both tools and people's ideas for making tools6. There are two competing readings of this historical materialism, i. e. interactive and passive notions of economic reductionism.

On the passive view, (which corresponds to stricter materialism), at least three approaches could be used to explore the relationship between law and society. The first would be the view that the relationship between the economic base and the superstructure is uni-directorial, the base being the active element and the superstructure passive and that law and the state emerge instrumentally from economic forces, and that all the social institutions of a community including its structures of political authority and its law arises from and adapt themselves to the nature of production7.

Thus laws are determined in their form and content by the material base. They have no independent efficacy. The state and law are not considered to have arisen from conscious human intention; rather they reflect the class struggle that takes place in the context of the economic base of society8. Engels argued that laws corresponded to the general economic conditions of a society and expressed or reflected the relations of production9. This mode has been termed 'economism' or crude materialism because of the extreme emphasis placed upon the determining influence of the material base of a society.

However Engels later disavowed any connections to such views10. A second view might be that economic factors are the sole influential ones in regard to any change, e. g. in law; this would be essentially a denial of the importance of other factors such as ideological ones. The third view is closely related to the second; it is a denial of relative autonomy of the superstructure. This view, perhaps, summarises the other two in that it entails both the claim that changes in the base must be followed by changes in the superstructure and the denial that the action of the other factors independent of economic ones is also significant.

These three views are rather differences of emphasis rather distinctly different positions11. However, this view is often regarded as an inadequate representation of Marx's views. For critics like Gramsci, this reading contains an overly simplistic conception of state and law12. The problems with a crude materialist approach are threefold. Firstly there is no analysis of the relationship between law and other social institutions. All parts of the superstructure are characterized as direct reflections of the mode of production. Secondly, an analysis of the functions of law is entirely absent.

No reason is offered to explain why the law is needed to express the relations of production. In addition, the role of the law in controlling relationships such as marriage which are outside the processes of production is beyond the horizon of an economic perspective13. Yet in modern society, legal rules regulate many kinds of social arrangements beyond even the broadest conceptions of the relations of production. Modern law distributes rights within the family concerning marital status, ownership of property and custody of children.

It is implausible to suppose that such laws are performing functions directly related to the economic basis of social formations14. However, advocates of interactionism does not argue either that law has total autonomy, rather that the law can, in certain circumstances, act upon economic life and can either facilitate or work against a particular mode of production15, and at the same time the superstructure possess a relative independence in relation to its basis. A social system can never be so rigid and closely determined as a system of mechanical dependencies.

The basis influences the superstructure through the interlocking economic and political interests of classes, the complex system of intermediate links between the economy and various forms of political consciousness. Responding to changes in the economic basis of society to the rise of new productive forces, they create new ideas and conduct ideological struggle against the old order carry out a revolution, and thus clear the way for the development of new production relations corresponding to the new productive forces16.

The dependence of the superstructure on the basis should not therefore be oversimplified and to be understood as a mechanism that operates automatically. It is wrong to attribute all changes in the superstructure to economic causes17. Various interactions take place within elements of the superstructure that leads to results which are sometimes not economically conditioned.

The social function of the superstructure is to protect fortify and develop its basis18. In a class-divided society the superstructure ensures the political and ideological supremacy of the class that holds the dominant position in the economy. It does this not only through ideological means, but also through other forms of social control. The superstructure is therefore always an active force influencing all aspects of social life, including its own basis19.

Thus for example, from the economic processes of feudalism in Europe arose not only from feudal ideas and a feudal superstructure but also from ideological controversies and institutional struggles which reflect the conflict between the emerging capitalism and decaying feudalism; great ideological battles, political upheavals and religious wars took place – all of which played an indispensable part in the economic changes from feudal relations of production to capitalist ones20.

To examine whether Marx, on this sophisticated reading of historical materialism, has underestimated the significance of law in modern societies, the possibility for the continuing of aforementioned relationship between law and the material base in modern societies needs to be considered. In modern society, certain legal rules appear to be part of the relations of production, for example, contract law. The relations of production are held together by such contractual rules. They form a kind of social glue for such economic practices21.

The question arises; therefore, can we separate out contractual law and the relations of production? If the relations of production are constituted by legal vocabulary, then there can be not clear determination of the superstructure by the base22 Rather than dismissing legal reasoning as an illusion an increasing body of Marxists are incorporating the autonomy of legal reasoning within their interpretation of law. Engels argued that codes of law were not unmitigated expressions of self interest proclaimed by the ruling class23. Engels also concedes that legal rules escape the determining effect of the material base.

He introduces a version of the thesis of the autonomy of law in which some legal rules are the product of non-instrumental and discrete modes of discourse. This claim could mean that legal reasoning is the product of the dominant ideology (as opposed to a direct reflection of the material base)24. In conclusion, although Marxists accept the partial autonomy of legal reasoning, what seems to be suggested is that the fundamental principles of law are materially determined, but within these constraints legal reasoning selects solutions to particular concrete problems.

In other words, the dominant ideology produces the basic standards of justice, the underlying categories and values of the legal system, but through a logical process judges articulate the precise implications to these norms. Therefore, in modern societies, law still plays a fundamental role, in regulating and distribution of rights within all aspects of society, including the relations of production, and will not "wither away" as suggested by Engels.