Marx, Law, Ideology, Legal Positivism

University of Chicago Law School Chicago Unbound Journal Articles Faculty Scholarship 2015 Marx, Law, Ideology, Legal Positivism Brian Leiter Follow this and additional works at: https://chicagounbound.uchicago.edu/journal_articles Part of the Law Commons Recommended Citation Brian Leiter, "Marx, Law, Ideology, Legal Positivism," 101 Virginia Law Review 1179 (2015). This Article is brought to you for free and open access by the Faculty Scholarship at Chicago Unbound. It has been accepted for inclusion in Journal Articles by an authorized administrator of Chicago Unbound. For more information, please contact [email protected]. LEITER_BOOK (DO NOT DELETE) 5/13/2015 5:05 PM MARX, LAW, IDEOLOGY, LEGAL POSITIVISM Brian Leiter* INTRODUCTION HIS Article offers an account of Marx’s theory of history and his Tclaim that law (and morality) are “ideological,” and then asks what theory of law is adequate to explain the way the Marxist theory under- stands law in both its ideological and non-ideological senses. I will ar- gue that legal positivism, unlike other views about the nature of law, provides a sensible explanation of law for purposes of the Marxist theory of historical change. This latter fact, in turn, gives us another data point in favor of positivism as the only serious explanation of the concept of law, precisely because it is able to explain the concept of law that figures in one of the most important explanatory paradigms in history and the social sciences. I. LAW IN THE MARXIST THEORY OF HISTORICAL CHANGE Both “law” and “morality” are typically denominated as part of the ideological superstructure in the Marxian theory of historical transfor- mation. According to what I will refer to as the “Orthodox Functional- ist” version of the theory (most clearly stated in the 1859 Preface to Marx’s, A Contribution to the Critique of Political Economy, and given systematic exposition by G. A. Cohen in 19781), any socioeconomic order has three important characteristics. First, there is the level of development of the forces of production, the means by which human beings produce everything that they need and (at later stages) want.2 The forces * Karl N. Llewellyn Professor of Jurisprudence and Director of the Center for Law, Phi- losophy & Human Values, University of Chicago. I am grateful to Professor David Brink and members of the audience at a meeting of the Central Division of the American Philo- sophical Association in Chicago in February 2014; and to the participants in the conference on “Jurisprudence and (Its) History” at the University of Virginia School of Law, including Professors Deborah Hellman, David Luban, Gerald Postema, Alice Ristroph, and, especially, Professor Mark Murphy. I have also been helped by an exchange with Professor Charles Barzun and an extensive correspondence with Professor Stefan Sciaraffa about the issues in this Article. Finally, my sincere thanks to Phil Smoke, University of Chicago Law School Class of 2015, for meticulous research assistance. 1 G. A. Cohen, Karl Marx’s Theory of History: A Defence, at x (1978). 2 Id. at 32. 1179 LEITER_BOOK (DO NOT DELETE) 5/13/2015 5:05 PM 1180 Virginia Law Review [Vol. 101:1179 of production include human labor power—a relative constant in history, except to the extent that humans grow somewhat taller and stronger over time—and, more importantly, what we may call “technology,” namely, all the tools by which human labor power expands its productive output, from the shovel to the steam engine to the computer.3 The Marxist theory assumes, not implausibly, that the forces of production grow in productive power over time, and that assumption is crucial to the entire theory.4 Second, there are the relations of production, which we can, follow- ing Professor Jon Elster,5 think of as the “property rights” characteristic of a particular socioeconomic order. In particular, the crucial question is the distribution of property rights in the forces of production.6 For example, do persons have property rights in their labor power (as under capitalism) or do others own their labor power (as under feudalism)? Who owns the major forms of technology and mechanical production? In the classic Marxist theory, the “proletariat” own only their labor power, while the “bourgeoisie” own all the other forces of production and purchase the labor power of the proletariat for a survival wage. Under feudalism, feudal lords own all the forces of production, including the labor power of serfs as well as their tools.7 In twenty-first-century capitalism, those who own and sell their labor power often get more than survival wages—law professors are but one example—and while the other forces of production are largely owned by a small number of pri- vate individuals, many others have partial stakes (through stock owner- ship) in small portions of the forces of production. Third, and finally, there is the ideological superstructure of society, which includes moral, political, legal, and religious ideas. The crucial claim of the Orthodox Functionalist version of the Marxist theory of history concerns the relationship among the three components. According to this theory, what explains the content of the ideological superstructure is that it contributes to legitimizing and thus stabilizing the relations of production (it does so by presenting those relations as, inter alia, just, fair, natural, inevitable, or some or all of the preceding); and what explains the nature of the relations of productions is that they contribute to 3 Id. 4 Id. at x–xi. 5 Jon Elster, An Introduction to Karl Marx 106 (1986). 6 Cohen, supra note 1, at 63. 7 Id. at 65. LEITER_BOOK (DO NOT DELETE) 5/13/2015 5:05 PM 2015] Marx, Law, Ideology, Legal Positivism 1181 maximizing the use and development of the forces of production.8 His- torical transformations occur when, in the Marxian metaphor, the relations of production “fetter” the further growth of the forces of production, that is, when the existing scheme of property rights hinders further exploitation and development of new technologies. So, for example, at some point feudal relations of production were incompatible with ex- ploiting forms of production made possible through steam and water power (as well as mechanical tools), thus giving the nascent bourgeoisie an incentive to overthrow the feudal relations of production in order to allow them to effectively exploit these new productive forces.9 Note that for jurisprudential purposes, the theory of historical materialism does not need to be true (the theory is highly illuminating, more so than most theories of history, but like every other general theory of all historical change, false); all that is required is that the theory makes claims about the nature of law that are intelligible and not nonsensical, such that it is reasonable to ask what theory of law is compatible with the claims of historical materialism. Marx’s theory easily satisfies that standard.10 Given that, we need to be able to say what the law is in three contexts for the Marxian theory: (1) there are the laws that constitute the relations of production, that is, the scheme of property rights in the existing forces of production; (2) there are the laws (and associated legal beliefs, for example, “you are entitled to equal protection of the law”) that are superstructural and ideological in the pejorative sense; and, (3) there are the laws that are non-ideological and superstructural because they characterize the legal relations of a non-class-based, that is, a communist, society. The last category requires some further explanation. Contrary to Marx’s occasional utopian speculations, there is no reason to think that communist societies would not have both law and morality. Only the case of law need concern us right now (I will return to the case of morality). As 8 Id. at 28, 31. 9 Hugh Collins offers a more subtle account of this, but ultimately makes the same point in Marxism and Law. Hugh Collins, Marxism and Law 21 (1982). 10 On what is true, and what is probably not true, see Brian Leiter, The Hermeneutics of Suspicion: Recovering Marx, Nietzsche, and Freud, in The Future for Philosophy 74, 79–80, 84–86 (Brian Leiter ed., 2004). LEITER_BOOK (DO NOT DELETE) 5/13/2015 5:05 PM 1182 Virginia Law Review [Vol. 101:1179 Joseph Raz argued forty years ago,11 even a “society of angels” would have need of law: not because angels would ever be inclined to do the wrong thing (angels never need to be coerced), but because even angels need systematic guidance to coordinate their activities effectively in the service of the common good. Angels need to know which side of the road to drive on, which day to put out the recyclable garbage, and how to dispose of their property after their death to those they want to inherit it. Communist societies will be no different, and not because Marx assumes that individuals in such societies will be “angels”; rather, he assumes that, in the absence of the need for constant competition for eco- nomic survival, individuals will behave quite a bit differently than they do under capitalism. But such individuals will have the same needs as those in Raz’s “society of angels” (including the need for post-mortem distribution of their property, since communist societies only eliminate personal property in other people’s labor and in the forces of production, including land, but not property in, inter alia, your furniture, your heir- looms, and the like). One suspects that the theory of law adequate to account for the concept of law in its first role in Marx’s theory will be adequate to account for its third role: In these two cases, that norms are norms of law does not seem to require any judgment about their merits, favorable or unfa- vorable.

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