The Marxist ApproachThe Marxist Approach

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

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

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

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

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

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

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

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

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

• Rather, law must be understood in Rather, law must be understood in relation to the economic sphere.relation to the economic sphere.

• The Marxist approach also sees The Marxist approach also sees inequality, conflict and power in inequality, conflict and power in structural terms, as class inequality, structural terms, as class inequality, class conflict, and class domination.class conflict, and class domination.

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

• Marx’s own writings did not include a Marx’s own writings did not include a coherent theory of the state, so that coherent theory of the state, so that became the task of later Marxist became the task of later Marxist theorists.theorists.

• Generally speaking, these writers Generally speaking, these writers started from the fundamental started from the fundamental observation that the state in a observation that the state in a capitalist society broadly serves the capitalist society broadly serves the interest of the capitalist (ruling) interest of the capitalist (ruling) class.class.

• From this similar starting point came From this similar starting point came two different theories of the state:two different theories of the state:

•Instrumental MarxismInstrumental Marxism

•Structural MarxismStructural Marxism

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

Instrumental MarxismInstrumental Marxism

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

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

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

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

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

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

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

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

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

• Instrumental Marxism was not Instrumental Marxism was not without its shortcomingswithout its shortcomings

1.1. Viewing the state as an instrument Viewing the state as an instrument or tool of the ruling class does not or tool of the ruling class does not allow for systematic analysis of how allow for systematic analysis of how actions and strategies of various actions and strategies of various ruling-class groups are limited by ruling-class groups are limited by constraints inherent in the structure constraints inherent in the structure of society.of society.

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

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

Structural MarxismStructural Marxism

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

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

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

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

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

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

• ““It must try to win the loyalty of It must try to win the loyalty of economically and socially oppressed economically and socially oppressed classes and strata of the population classes and strata of the population to its programs and its policies it to its programs and its policies it must attempt to legitimate the social must attempt to legitimate the social order” (O’Connor 1973:79).order” (O’Connor 1973:79).

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

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

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

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

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

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

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

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

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

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

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

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

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

• Yet structured Marxism also had Yet structured Marxism also had its limitation.its limitation.

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

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

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

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

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

• Marxist also call into question the Marxist also call into question the autonomy of law.autonomy of law.

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

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

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

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

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

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

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

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