Marxism and Critical Legal Studies

1. Marxism and Critical Legal Studies

2. Classical Marxism - Idealism • Karl Marx and Friedrich Engels were writing in the wake of classical German philosophy. • Classical German philosophy was idealist in character, most important here was the idealism of George Wilhelm Friedrich Hegel. • Idealism held that progress, intellectual progress particularly, came via a process through which our thoughts about the world became more and more adequate to the nature of reality. • Reality is completely knowable: Idealism is cognitivist (we can cognise the true nature of things) an anti-sceptical.

3. Classical Marxism - Idealism • Not just in terms of nature or physical reality, but also society, politics, ethics and law. • The same anti-skeptical thinking applies to these areas, our understandings become more adequate in history. • This proc ess is driven by the fact that inadequate understandings carry contradictions and tensions, while initially a certain understanding will look attractive and complete, its limitations will become more evident until it can no longer be sustained. • This leads us to revise our understanding, move to a new way of understanding things that overcomes these limitations and new forms of practical activity. And so this “dialectical” process goes until we reach a fully adequate understanding of things.

4. Classical Marxism - Idealism • Dialectical process: seemingly adequate conceptions arise, they carry contradictions and tensions which eventually undermine those conceptions, rendering them inadequate and thus we are forced to develop new understandings. • Marxists often characterise this “dialectic” as a process of thesis-antithesis-synthesis but Hegel never put it that way. • Hegel says this “dialectical” process is at play in the development of social, ethical, political and legal thinking. • Thus any political, social or legal form we encounter is based on our ‘ideas’ about society, politics and law. • Human practices, such as politics and law, are based on human thought, human thought, just as much as human practices, have a history.

5. Classical Marxism - Idealism • Notice though that thought is not operating in a vacuum, it is responding to the world, to real problems and crises that emerge as a result of the practical application of an inadequate idea. • It is not, as Marxist often seem to suggest, simply a matter of ideas interplaying with ideas – as if thought occurs in some vacuum wholly broken off from real experiences. • For Hegel the advent of a liberal democratic constitutional state (particularly a constitutional monarchy), we have reached the most fully adequate expression of the political. • Does he side more with Rawls or with Nozick? Well he claims unregulated markets produce extremes' of wealth and poverty and destabilise society. So. Rawls!

6. Classical Marxism • Marx and Engels offer a different conception of historical progress – not idealism, materialism! • A thesis about the way concrete conditions, material conditions, drive historical change and progress: it’s a historical materialism not a historical idealism. • Ideas do not (at all) drive history, ideas are driven by material changes and these material changes are what drive history and progress. • The most significant feature of material conditions driving social changes were “the means of production” = the material or non-human aspect of production. • Also significant are the relations of production = the human element of production, particularly class relations. • Changes in the means of production will bring changes in the relations of production, changes in the way society is organised.

7. Classical Marxism • For Marx and Engels history moved with changes in means of production, by changes in the way we materially produce and the class relations that are required by this. • The interlinked means of production and relations of production are the economic base of any social form. • All the other aspects of society, its political system, its legal system, the mores and norms that are acceptable within it, so on and so forth, all rest on that societies economic base and are a reflection of that. • In order to understand, say, a legal system, one had to view it in light of the economic base on which it rested. • The base and the superstructure! The base is material or economic, all other social, cultural, political and legal phenomenon rested on that base. Marx uses the metaphor of foam floating (superstructure) on the sea (base).

8. Classical Marxism • Marx says that its not that the consciousness of human beings changes history rather that history changes the consciousness of human beings = our understanding and orientation on the world does not drive historical change rather historical changes drive the way we understand and orientate ourselves on the world. • Historical changes are driven by economic and material shifts that move according to their own internal logic. • Marx and Engels see this picture of the world as running counter to idealism with its emphasis on ideas (or their understanding of idealism)

9. Classical Marxism: Critique of Ideology • We can extract from the above a clearer sense of the key Marxist notion of ideology. • An ideology is a total framework of understanding the world and social reality, • Ideologies are group specific. The ideology of any particular group is not something that is at the front of consciousness, its kind of subconscious • It’s a systematic and interwoven set of beliefs, attitudes and values – it has a thoroughgoing normative content, that is, we judge actions and claims to be right and wrong, good or bad in light of the ideological framework that we hold. • These beliefs and values we hold as true but cannot demonstrate to be true, indeed its never occurred to us that they require demonstration, some of them are indemonstrable and we would be puzzled if we were asked to justify our commitment to them

10. Classical Marxism: Critique of Ideology • Social forms produce ideologies, frames of reference that structure the beliefs, values and norms of those who inhabit them and help to reproduce that social form. • As the economic base changes such ideologies crumble, the inconsistencies, contradictions, inadequacies become evident and we lurch into a new social form and a new ideology develops. • Historically: we began with an egalitarian or classless society, with communal ownership; distinct classes eventually develop whereby one class emerges as dominant and controls the means of production, subordinating others to its interests. This creates class antagonisms which are quelled through institutional and ideological mechanisms that support the interests of the dominant classes: This remains until there is a shift in the mode of production allowing for previously subordinated classes to come to dominate production in a more or less revolutionary move. The old institutions and ideology start appearing as inadequate, its inconsistencies are exposed, it no longer appears a rational or natural order.

11. Marxism and the Law: Making it Explicit • Law is part of the institutional regulation of class society, at any point in time then law will be in the service of the dominant class. • It is part of the superstructure and so it reflects at an ideological level the needs of the base • Law is not an autonomous discourse or phenomenon, the product of a kind of self-contained legal reasoning, that is, if the law is, as Marx and Engels claimed it to be, in the service of the interests of the economic base. • Those who believe that law is an autonomous discourse are fetishising the law, by attributing to law a reality and a power it does not have. • When we fetishise the law we think about it as a free standing discourse, that is an independently existing discourse, with the power, through its particularly legal mode of reasoning, to determine the just bounds of legal authority, and so to shape social reality.

12. Marxism and the Law: Making it Explicit • Law is thus not autonomous, but is bound up with economic factors: both in terms of the nature of the law and in terms of any particular legal judgment, one must understand the way material and economic conditions underwrite and shape law. • Probably overly reductive – law reduced to economic relations. One might accept the idea that law is non-autonomous, that there are political, ethical, social, moral and economic factors that influence it. • The core of the Marxist critique is that law is a tool of social domination used by the dominant class in any point of history to maintain and advance its interest

13. Marxism and the Law: Making it Explicit • For many Marxists the bourgeois state tends to express itself via law and legislation, but behind these expressions lie the class interests of the bourgeois. • Again such a line of thinking can be seen to be a little excessive. • Criticisms: Marxist analysis, it seems to reduce history to a by-product of material conditions, leaving the contribution of thought and ideas out of the picture. • Economic reductionism in history and in law.

14. Critical Legal Studies • CLS inherits much from realism but infuses realism with a Left politics and a strong critique of Liberalism (mainstream). It seeks to ‘trash’ Liberalism. • CLS sees law as ideological – it caters to and legitimates established social and economic interests (the establishment). • It takes the message of Realism – that law is politics – seriously and to its more radical conclusion. As such it has helped to inform feminist legal theory and critical race theory of law. • However CLS, while strong in the second half of the 20th century has lost influence over the last two decades.

15. Critical Legal Studies • CLS moves off from the idea that law is indeterminate, the rules themselves are unable to generate right answer and so judges are forced to draw on political factors in their decisions. • Judges conceal, however, the political influences of their decisions in elaborate, post hoc, rationalizations of their decisions in light of the rules. They make it appear ‘objective’ and a product of what the mainstream would consider ‘legal reasoning’. • Thus law is an instrument for advancing political ends, political goals, however these goals are bound up with protecting and preserving an unjust status quo (it is ideological in the sense that the judgments conceal, via a subterfuge, the social and economic determinants of the decisions reached).

16. Critical Legal Studies • Because the law was bound up with ideology and defense of an unjust status quo CLS sought to delegitimate the law. • This is far more radical than the realists – who sought to use law to advance the values of American Liberal Democracy (social reform orientated on liberal values). • But to CLS it is these values, the values of American Liberal Democracy, that were the problem. They believed that notions like the rule of law and legal rights, which the legal system seemed to promote were also illegitimate, they particularly thought that the notion of value free legal decision-making was a sham. • To understand the CLS approach to these things one has to understand the postmodern and Marxist influences on it.

17. Critical Legal Studies: Post-Modernism • Post-Modernism is hard to encapsulate for two reasons: a) its proponents hold different, sometimes conflicting, views; b) their writings are notoriously obscure. • The three most important representatives are: Michel Foucault, Jean Francois Lyotard and Jacques Derrida. • The first thing to note about post-modernism is that it arises as a reaction against modernism, particularly the notion that there can be objective and universal standards of truth and justice, and particularly a faith in reason to achieve progress in history. • Modernism thus expresses a faith that reason, via knowledge of objective and universal truths can drive social progress and they tend to read history as being a story of progress via reason and rational insight.

18. Critical Legal Studies: Post-Modernism • One of the most important products of Modernism is liberalism and the liberal democratic outlook, which was seen as the key political vehicle of social change/advancement. • Post-Modernism is born out of the tragedies of the first half of the 20th century, the idea that reason and science do not issue in moral progress, the failures of liberal democracy to deliver its emancipatory claims of social, moral or political progress. • Yes it had expanded knowledge but no it had brought little improvement in our social, moral and political condition. • Thus the claims of modernism were built around a myth, a myth built, as all myths are, around a narrative. It was a ‘grand theory’ built around a ‘grand narrative’.

19. Critical Legal Studies: Post-Modernism • One of the things meant by ‘grand theory’ or ‘grand narrative’ are the kind of theories offered by Plato, Aristotle, Descartes, Kant or even Marx – theories that claimed to have found an absolute or certain foundation for knowledge. One which could be the basis of social reforms. • Post-modernism rejects as authoritarian any claim to have discovered a clear criteria for truth, because all such claims become totalizing. • For instance, the claim that the methods of science are the sole methods for discovering truth and thus the sole means for knowledge production (scientism) essentially renders all human life subordinate to the deliverances of science – literature exposes no human truths, its just a form of entertainment, art might move but informs us of nothing. Everything that is not science is thus just a curiosity perhaps to be enjoyed but not to be taken seriously.

20. Critical Legal Studies: Post-Modernism • Post-Modernism thus seeks to combat such totalising views or in Lyotard’s words “wage war on totality” no matter what the nature of the totality: Religion, Science or Politics. • They embrace a view of things as radically plural and so they reject any monolithic discourse, particularly through asserting the value of otherness and difference. They champion the marginal, the marginalised, the rejected, the outcasts, the freaks, beggars and whores. • It is a whole-scale rejection of the entire tradition of intellectual life as it was known at least up until the 1940’s.

21. Critical Legal Studies: Post-Modernism • They also insist on the socially conditioned nature of all thinking and because all thinking is socially conditioned it is impossible to ever arrive at truth or see reality as it is. • There is no independent viewpoint from which we can check to see if theory mirrors reality. All view-points are ‘experienced’ and all experience is constructed, they do not reflect how things are they just show us a perspective (Religion, Science, Politics all just perspectives). • What replaces the Enlightenment ideals of rational unity is a vision of the world that as a radical multiplicity of perspectives and different viewpoints, none of with is ultimately ‘real’. • This feeds into a political claim: politics, as we know it, is another totalizing discourse. Those in power seek to marginalize and reject any viewpoint that does not concur with its own ideology. Like all forms of ideology, it seeks to either negate or render irrelevant any thing that challenges its power – particularly different views, different perspectives.

22. Critical Legal Studies: Post-Modernism • Intellectual life, no less than politics, is an attempt to render those who differ from you irrelevant, an attempt to oppress in the name of some totalizing view and deny the right to be different. • As such theorists like Michel Foucault attempt to show how all dominant viewpoints achieve their dominant status through games of power that marginalize and oppress difference. • Thus dominant paradigms have power not through merit but through their ability to oppress, the status quo then is not the way it is by nature, it is a contingent state of affairs that could be otherwise. • But Foucault connects power to knowledge: they are two sides of the same coin. What we take to be objective knowledge is just a set of claims that have been authorized by those in power. They call it truth but really its their perspective, their interpretation. But by asserting their perspective as truth they preserve their power.

23. Critical Legal Studies: Post-Modernism • Post-modernism attempts to challenge the dominant discourse by being a voice for the marginalised, a voice for those who lack power and by promoting pluralistic perspectives or marginal perspectives. • It attempts to move thinking and discourse from a ‘politics of universalism’ to a ‘politics of difference’. • The Politics of universalism insists on universal rights, undifferentiated and sees these based on universal features of human nature. • The Politics of difference asks us to recognise difference and particularity, particularly that different groups have different needs and so uniform treatment might fail to bring justice. • It identifies discrimination as flowing not from exclusion from common rights but from failure to recognize difference and an ignoring of unique identities.

24. Critical Legal Studies: Post-Modernism • This gives a uniquely post-modern account of ‘justice’ (scare quotes): in order not to discriminate against marginal and powerless groups we might have to treat them differently. • The liberal politics of universalism tells us to subject them to the same standards as all others, but this itself seems to ignore their different views, different perspectives and demands that they assimilate to the dominant paradigms in order to be recognized. • But because there is no ultimate truth, no ultimate objectivity we have to be careful about the term ‘justice’ – justice is always particular to the perspective of the group. What we call ‘justice’ is just what appears to be justice from our perspective, from other perspectives it might not appear the same. • That is why we have to be attentive to the needs and views of the marginal, to appreciate what a just resolution is in their eyes.

25. Critical Legal Studies: Post-Modernism • One final aspect of post-modernism relates to the linguistic turn. Post-modernists take a view on language whereby no term can be understood in isolation from other terms – meaning is always relational, I cannot understand ‘up’ without understanding ‘down’, I cannot understand these things without understanding the notion of ‘direction’ which I cannot understand without understanding the notion ‘space’ and so on. • As such meaning is a function of the difference between concepts, or understanding the difference between concepts. The Meanings of words do not arise because of their relationship to things in the world, their relationship to reality, they gain their meanings in relation to other things. • Because of this language cannot be used to describe reality objectively, different languages describe different realities.

26. Critical Legal Studies: Post-Modernism • Derrida radicalizes this, he asserts that within the system of signs that constitute a language there is no stability, that meanings are inherently unstable, that words and texts have many and often conflicting meanings. None of which can be more authoritative than the others. • There is not final ‘right’ interpretation of anything, we can never know the meaning of anything, always indeterminate. • But this is something to be embraced, for it means that we are allowed ‘free play’ with texts and meanings (imagine a statute), we interpret the text from within our own perspective and its as fully valid as any other interpretation. • Meanings are only kept stable by power, by certain groups asserting its own interpretation as correct. Again this feeds a politics of difference and a rejection of a universal truth (universal justice) in the name of difference.