The Marxist Approach

1
The Marxist Approach

• Dates back to the 19th century roots in the
  work of Karl Marx and extends into the 20th
  century with the works of the Neo-Marxists and
  the emergence of the new left in the 1960s.

2

• The Marxist approach starts from an assumption
  opposite to that of functionalism, instead of
  stability and consensus, society is characterized
  by conflict, antagonism, and exploitation.

3

• Moreover, in contrast to the liberal pluralist
  approach, conflict is rooted not in cultural
  factors like interests but in the very
  structure of society.

4

• Key to the Marxist conception of society is the
  idea that the economic variable is the
  determinant in the last instance.

5

• In the Marxist conception, society consists of an
  economic base, or infrastructure, out of which
  arises the superstructure or other institutions
  and social processes of society (such as the
  legal, political, familial, and religious
  spheres).

6

• For Marx, the relationship between the base and
  superstructure is dialectical the superstructure
  arises out of the economic base but once created
  acts back to reproduce it.

7

• Given the position of dominance of one class over
  another in the economic sphere, the other spheres
  and processes in society will be organized to
  serve the interests of the dominant class.

8

• In other words, within the superstructure, the
  kind of legal system, the form of the family, the
  nature of education will operate in accordance
  with the interests of the dominant class.

9

• In a Marxist approach, because the economic
  variable is viewed as primary, it becomes
  impossible to study other segments of society
  like law in isolation from the economic

10

• Rather, law must be understood in relation to the
  economic sphere.
• The Marxist approach also sees inequality,
  conflict and power in structural terms, as class
  inequality, class conflict, and class domination.

11

• Accordingly, consensus is not a natural
  condition it has to be continually manufactured
  or created.

12

• Marxs own writings did not include a coherent
  theory of the state, so that became the task of
  later Marxist theorists.
• Generally speaking, these writers started from
  the fundamental observation that the state in a
  capitalist society broadly serves the interest of
  the capitalist (ruling) class.

13

• From this similar starting point came two
  different theories of the state
• Instrumental Marxism
• Structural Marxism

14

• While studying the law-society relationship,
  theorists used instrumental and structuralism to
  address the class character of law under
  capitalism

15
Instrumental Marxism

• Instrumental Marxism posits that the state acts
  at the behest or command of the capitalist class.

16

• This interpretation is based on the idea that the
  processes of the superstructure are determined by
  the economic base.

17

• As such, institutions within the state are tools
  that can be manipulated by the capitalist class
  as a whole.

18

• In essence, instrumentalist posited a direct
  correlation between class power (ownership of the
  means of production) and state power.

19

• Within this perspective the instrumentalist would
  argue that law itself is a weapon of class rule.

20

• The focus was on the coercive nature of law,
  whereby they say law and legal order as a direct
  expression of the economic interests of the
  ruling class a means of protecting property and
  consolidating political power. Some writers even
  went so far as to claim that capitalist class
  member were immune from criminal sanction
  (Quinney 1975, Chambliss 1975).

21

• By directing attention to the linkages between
  class power and state power, instrumental
  Marxists called attention to the actions and
  behaviours of ruling-class members.

22

• In particular, the legal definition of crime came
  under close scrutiny, especially in the context
  to which the criminal law excluded a range of
  behaviours harmful and threatening to members of
  society.

23

• This led to an examination of crimes of the
  powerful, including price-fixing, production of
  faulty consumer products, environmental
  pollution, and governments corruption (see Goff
  and Reasons (1978) Snider (1978) Pearce
  (1976)).

24

• Instrumental Marxism was not without its
  shortcomings
• Viewing the state as an instrument or tool of the
  ruling class does not allow for systematic
  analysis of how actions and strategies of various
  ruling-class groups are limited by constraints
  inherent in the structure of society.

25

• 2. To say the law is a weapon of the ruling class
  implies not only that the ruling class is a
  united whole, but also that it is so powerful
  that it will be able to ensure that the state
  will always legislate in its favour.

26

• 3. Instrumental Marxism display an insensitivity
  to the conditions and processes that legitimate
  democratic capitalist societies.

27
Structural Marxism

• By the late 1970s, Marxist theorists were moving
  away from the conspiratorial account of the
  capitalist state.

28

• In rejecting the notion of the state as an
  instrument or toll of the ruling class,
  structural Marxists put forward the view that
  institutions within the state provide a means of
  reproducing class relations and class domination
  under capitalism.

29

• Structural Marxists do not agree that the state
  acts on the behest of the capitalist class, but
  instead on behalf of capital

30

• The role of the state, in carrying out its role
  as mediator and organizer, as performing
  particular functions, which were broadly subsumed
  under the headings of accumulation and
  legitimation.

31

• Accumulation includes activities in which the
  state is involved, either actively or passively,
  in aiding the process of capital accumulation (or
  wealth generation). In short, the state must try
  to create and maintain the conditions under which
  profitable accumulation or capital is possible.

32

• Legitimate refers to state activities that are
  designed to create and maintain conditions of
  social harmony.

33

• It must try to win the loyalty of economically
  and socially oppressed classes and strata of the
  population to its programs and its policies it
  must attempt to legitimate the social order
  (OConnor 197379).

34

• The relationship between accumulation and
  legitimation are dialectical nearly every agency
  or institution within the state is (often
  simultaneously) involved in both activities.

35

• To carry out its role the state needs a certain
  degree of autonomy, not from the structural
  requirements of the economic sphere, but from the
  direct manipulation, of its activities by the
  dominant class.

36

• In this way the state is able to transcend the
  parochial interests of particular capitalist
  class members and thus ensure the protection of
  the long term interest of capitalism (Poulantzas
  1975).

37

• The relative autonomy of the state can therefore
  account for the presence of laws that favour
  workers (i.e. minimum wage laws). And those laws
  designed to control the actions of capitalists
  (i.e. restrictions on environmental pollution or
  anti-combine legislation).

38

• The structural Marxist emphasis on the role of
  the state as organizer and mediator framed in
  terms of the dialectical interplay between the
  economic base and political and legal
  superstructure led to more sophisticated
  analyses of law-making than those offered by
  instrumental Marxist.

39

• William Chambliss (1986) suggested that the basic
  conflict between capital and labour creates, in
  different historical periods, particular
  conflicts and dilemmas to which the state has to
  respond.

40

• One response is to create legislation. According
  to Chambliss, however, the laws that are created
  are not designed to resolve the basic
  contradiction, but only the conflicts and
  dilemmas that emerge from it. Law is only a
  symptom-solving mechanism.

41

• Far from resolving the basic problems in the
  system, it creates the conditions for the
  emergence of new conflicts and dilemmas later on
  down the road. (see Comack 1991, Smandych 1991)

42

• Whereas instrumental Marxist concentrated on the
  coercive nature of law, structuralists extended
  the analysis to include an examination of the
  ideological nature of law and legal order.

43

• In essence then, structural Marxist suggest that
  law legitimizes the dominance of one class over
  the other by appealing to the very democratic
  principles that are thought to guide against such
  bias.

44

• Structuralist Marxist recognize the existence of
  class fractions within the dominant class. The
  state, as such, was not simply an instrument or
  tool, but an organizer.

45

• Because consent was not an automatic condition,
  but had to be continually constructed,
  structuralists focused attention on the processes
  by which hegemony was realized.

46

• The attention to the ideological role of law
  enabled the structuralists to better reconcile
  the class-based with the existence of democratic
  ideals and principles (like equality and justice)
  that the legal order claims to uphold.

47

• Yet structured Marxism also had its limitation.
• While instrumentalism was criticized for its
  overemphasis on capitalist class input into and
  control over the state, it could be argued that
  the structuralist account went too far in the
  other direction it is the constraints and
  limitations of the structure not human agency
  that determine the direction of society.

48

• 2. In a similar vein, the concept of relative
  autonomy has been criticized, in that the theory
  does not convincingly explain the specific
  factors that determine the states degree of
  autonomy from economic relations.

49

• 3. As it stands, the focus on the accumulation
  and legitimation functions of the state leads to
  a kind of circular reasoning any concessions
  made to workers are indicative of the
  legitimation function, while gains made by
  capitalists are attributed to the states concern
  with maintaining capital accumulation.

50

• The Marxist approach, then, is intensely critical
  of the laws claims to impartiality, fairness,
  and objectivity.

51

• From the Marxist perspective the Official Version
  of Law is a form of ideology a particular
  valve-laden position that has the effect of
  legitimating a system of unequal social
  positions.

52

• Marxist also call into question the autonomy of
  law.

53

• The Marxist critique of the Official version of
  Law stimulated debate over the potential for law
  as an agent of social transformation.

54

• Highlighting the contradictions and
  inconsistencies the inherent tensions built
  into the Official Version of Law offers the
  possibility of developing a jurisprudence of
  insurgency to undermine the social relations of
  capitalism (Brickey and Comack 1987).

55

• During the 1980s Marxist theorizing on law
  continued to be altered and reformulated (see for
  example Mondel 1986 Ratner and McMullen 1987
  Glasbeek 1989 Snider 1989).

56

• What was the noteworthy about much of his work
  was that it framed the fundamental question, or
  problematic, in terms of class relations.

57

• By rooting inequality in the economic sphere, and
  by defining power in terms of relations between
  dominant and subordinate classes, the Marxist
  formulation went beyond the functionalist and
  liberal-pluralist accounts in clarifying the
  systemic nature of inequality and how it is
  reproduced at the superstructural level.

58

• In doing so, it effectively made other dimensions
  of inequality specifically gender and race
  into contingent variables.

59

• This feature was not lost on many of the Marxist
  analysts and as the 1980s drew to a close an
  increasing consensus developed among those
  working in the tradition that their fundamental
  question was in need of re-working.

60

• The primary stimulus for the rethinking of the
  Marxist approach came from the challenge of the
  feminist movement.