Transcript The Marxist Approach • Dates back to the 19th century – roots in the work of Karl Marx and extends into the 20th.

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 NeoMarxists and the emergence of the new
left in the 1960s.
• 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.
• Moreover, in contrast to the liberal pluralist
approach, conflict is rooted not in cultural
factors like ‘interests’ but in the very
structure of society.
• Key to the Marxist conception of society is
the idea that the economic variable is the
‘determinant in the last instance’.
• 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).
• 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.
• 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.
• 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.
• 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
• 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.
• Accordingly, consensus is not a ‘natural’
condition: it has to be continually
manufactured or created.
• Marx’s 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.
• From this similar starting point came two
different theories of the state:
• Instrumental Marxism
• Structural Marxism
• While studying the law-society
relationship, theorists used instrumental
and structuralism to address the class
character of law under capitalism
Instrumental Marxism
• Instrumental Marxism posits that the state
acts at the behest or command of the
capitalist class.
• This interpretation is based on the idea
that the processes of the superstructure
are determined by the economic base.
• As such, institutions within the state are
tools that can be manipulated by the
capitalist class as a whole.
• In essence, instrumentalist posited a
direct correlation between class power
(ownership of the means of production)
and state power.
• Within this perspective the instrumentalist
would argue that law itself is a weapon of
class rule.
• 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).
• 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.
• 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.
• 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)).
• Instrumental Marxism was not without
its shortcomings
1. 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.
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.
3. Instrumental Marxism display an
insensitivity to the conditions and
processes that legitimate democratic
capitalist societies.
Structural Marxism
• By the late 1970’s, Marxist theorists were
moving away from the conspiratorial account of
the capitalist state.
• 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.
• Structural Marxists do not agree that the
state acts on the behest of the capitalist
class, but instead on behalf of capital
• 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.
• 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.
• Legitimate refers to state activities that
are designed to create and maintain
conditions of social harmony.
• “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” (O’Connor
1973:79).
• The relationship between accumulation
and legitimation are dialectical; nearly
every agency or institution within the state
is (often simultaneously) involved in both
activities.
• 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.
• 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).
• 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 anticombine legislation).
• 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.
• 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.
• 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.”
• 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)
• 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.
• 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.
• 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.
• Because consent was not an automatic
condition, but had to be continually
constructed, structuralists focused
attention on the processes by which
hegemony was realized.
• 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.
• Yet structured Marxism also had its
limitation.
1. 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.
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.
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 state’s concern with
maintaining capital accumulation.
• The Marxist approach, then, is intensely
critical of the law’s claims to impartiality,
fairness, and objectivity.
• 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.
• Marxist also call into question the
autonomy of law.
• The Marxist critique of the Official version
of Law stimulated debate over the
potential for law as an agent of social
transformation.
• 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).
• During the 1980’s Marxist theorizing on
law continued to be altered and
reformulated (see for example: Mondel
1986; Ratner and McMullen 1987;
Glasbeek 1989; Snider 1989).
• What was the noteworthy about much of
his work was that it framed the
fundamental question, or problematic, in
terms of class relations.
• 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.
• In doing so, it effectively made other
dimensions of inequality – specifically
gender and race – into contingent
variables.
• This feature was not lost on many of the
Marxist analysts and as the 1980’s drew to
a close an increasing consensus developed
among those working in the tradition that
their fundamental question was in need of
re-working.
• The primary stimulus for the rethinking of
the Marxist approach came from the
challenge of the feminist movement.