Marxism

Marxist theory of law remains undeveloped compared with Marxist critiques of political economy. One reason for this situation is that Karl Marx (1818–1883) himself never returned to the project of his youth: to complement his critique of political economy with a critique of jurisprudence. There are asides in Grundrisse and Capital in which Marx provides clues to how his critique of political economy might transpose to jurisprudence. There are political texts in which he develops his practical approach to questions of law. Yet there is no social theory of law ready-made in his works.

Learning from Marx is also difficult by equivocations in Marx's own work. In some passages, he offers a negative criticism of legal rights as “mere forms” and a view of communism as superseding all juridical inhibitions. In others, he shows appreciation of the value of legal forms. Although he speaks of the “positive supersession” of modern law as opposed to its “abstract negation,” he offers no clear-cut explanation of what this means. In On the Jewish Question, for instance, Marx appears to criticize civil rights as rights of egoism, but the thrust of his work is to defend the right of Jews to full political emancipation against a radicalism that declared that Jews should not be granted political rights unless and until they abandon Judaism.

The contribution of Marx to understanding law lies in his critique of natural law theory and positivism and his proposal, following Friedrich Hegel (1844–1900), of a social theory of law. His theoretical project was to reveal what kind of social relations lie behind legal categories and why these social relations take a legal form. Marx held that the idea of right is neither a property of human beings as such nor a product of sovereign legislation. Rather, it is a social form of the subject that emerges under given historical conditions. If Marx had followed the method of his critique of political economy, he would have traced the development of law from its simplest form of right to the most complex forms of state and international law. He would also have repudiated hatred of law, even when expressed in the name of the people.