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American and European Legal Histories and Marxism Essay


Introduction

Evolutionary influences can be mainly seen in the legal theory of Karl Marx, who neither believed in God nor supported the doctrine of human sin. Rather, Marx believed that laws were products of people and represented the will of the social classes that stood above others on the hierarchy. Based on these views, there were attempts to disregard the rule of law as it existed and instead establish a secular utopia among various societies around the globe. However, in reality, the efforts of governments to establish the equality of wealth proposed by Marx created a lot of inequalities as well, such as political oppression. For instance, in the twentieth century alone, the governments that were inspired by Marxist ideology contributed to the killing of nearly a hundred million citizens who were subjected to the worldview that the great representatives of society were the only ones who could decide between right and wrong.

Western views on law were predominantly shaped by the influence of Darwin’s evolutionary theory, which supported a change in legal studies during the nineteenth century. Marx espoused and reinforced the belief that human laws are mere accidents and rejected all belief in the idea of natural law, which was used by the fathers of democratic constitutionalism in the United States. The key ideas of Marx regarding the law were laid out in his collaboration with Engels, the Communist Manifesto, in which the authors criticize the entire institution of government being subjected to the rule of law, stating that such a tradition is a selfish misconception. This paper will focus on examining the legal histories of the United States and Europe and finding links between them and the writings of Marx and Engels to determine whether they are any inconsistencies that could be accounted for with the help of other theoretical traditions.

It is crucial to mention that Karl Marx did not put the entire focus of his work on legal theory; therefore, it can be quite complicated to clearly outline his views on the law. One of the reasons for this complexity is the fact that Marx’s writings form a complex synthesis of various intellectual sources, directions, and opinions. For instance, while Marx was linking himself to the tradition of idealism, where Hegel prevailed, he did not agree with the support of authoritarianism to achieve an egalitarian order of society, as was being proposed by the French utopian socialists (Sutton 62). Because the inspirations for his philosophical stance were diverse, in the periods of his early work, Marx took a primarily humanistic and philosophical approach to his worldview; however, later, he started to become more concerned with finding connections between the social and economic forces that exist in societies.

Law and Society in Marx’s Ideology

The relationship between law and state in the classical model proposed by Marx revolves around three key ideas: societal structure, the methodological approach, and connections between social organization and human personality (primarily the concept of alienation). Indeed, ideas of alienation are closely intertwined in the theoretical approach of Marx, who states that human personality in a capitalist society is based on the activities of production in everyday life. Alienation occurs when a human being loses his or her grasp of creative faculties (Sutton 64); in this way, Marx links the notion of alienation to the production of commodities within a society. Therefore, labor becomes social when there is a universal alienation of individual types of work (A Contribution to the Critique 38). While there is evidence of some sort of anthropological romanticism in Marx’s discussions of separation, to him, alienation is the product (or result) of tensions between realizations and potential that have been integrated into the history of societies.

In his most outstanding work, Capital, Marx writes that objects, as they are, are external to human beings and thus are alienable. For such alienation to become retaliatory, people must treat one another as private owners of alienable objects and, thus, as independent individuals (Marx, Capital 61). The method of historical materialism proposed by Marx was used to analyze the social change in an identifiable historical context. While Marx did not fully apply religious consciousness to his exploration of society, he still held the opinion that the material world is a product of the labor of human beings, and thus, it is a product of religion, politics, and other influences that have existed at different stages of societal development. Lastly, the base-superstructure model was used by Marx to explain the relationships that exist between consciousness and societal structures. In his writings, societal structures are divided into the real foundation (the basis for the society) and the legal and political superstructure (including morals, ideology, religion, culture, and so on) (Sutton 69).

United States: Law and Society

The general view that the rule of law is embedded in the principle of democracy suggests that law is impartial and thus instrumental in resolving societal conflicts. However, according to Hammerstrom, the law is not unbiased, nor it is impartial (1); instead, it includes the social and political misconceptions of the legislators and judges who participate in forming and upholding it. For example, in the wake of industrialization in the United States came the challenges of private injury and personal damage, both of which required some legal accommodation. Nevertheless, it was not the democratic society that was assigned to make the required changes in legislation—because the Federalist elite who participated in the creation of the Constitution did not trust the majority to make crucial decisions, they developed a system in which the property-owning top layers of society played the determining role in shaping the country’s legal, political, and social structures. A similar view is held by Walter Gellhorn, who in his work Individual Freedom and Governmental Restraints writes that “there is nothing more to the problem than discovering whether one likes or dislikes the results reached by administrators” (67), pointing out the triumph of bias over the principles of civil liberties and democracy.

However, if one is to apply Marx and Engels’ views on democracy to the context of the law and the legal system of the United States, there are some similarities and inconsistencies between the two. In Marxist thinking, the role of democracy is predominantly attributed to society’s transition from capitalism to communism, although the historical development of the United States aimed towards establishing capitalism rather than communism. The characteristics of America as a capitalist country are discussed in Mark Green’s article “When Money Talks, Is It Democracy?” in which he examines the political action committee (PAC) and its contribution to the freedoms of speech and democracy. Green asserts that money speaks in American politics and argues that this situation presents a major problem for society since money is not speech and thus should not be protected constitutionally.

The capitalist nature of American law, politics, and society, in general, follow the principles of democracy in which people of all social classes have the opportunity to voice their opinions through a system of elections; however, when it comes to real-life decisions, especially in the legal sphere, American society is rooted in a system in which money and privilege make all decisions (Domhoff 97) and the poor do not have a voice. According to Derthick and Quirk, American politics and the law system have been associated with the power of narrow interests (7), so the authors focus on examining American industries that have experienced some tremendous changes in competition. Within these industries, the authors find that the rule of money prevails over other forces, which makes the processes of commerce even more challenging. According to Marx in the “Contribution of Critique of Political Economy,” each industry (e.g. manufacturing, agriculture, shipping) has been turned into a real source of wealth.

Europe: The Jewish Question and Socialism

About the historical development of law in Europe, one of the prominent questions that Marx and Engels wanted to answer was associated with the “Jewish Question,” a term that refers to the issue of the civil rights of Jews (47). For centuries, the Jewish nation was considered a pariah throughout the entire European continent (Sutton 72); however, in the eighteenth century, their legal status started improving as the result of the democratic revolution. The shift towards acceptance occurred most slowly in Eastern Europe (predominantly in Germany), which attributed the official religion and political rights to Christians only. As mentioned by Neumann, Jewish society formed an “important fighting league of middle-class traders” (42) who were despised for their higher wages and unemployment insurance, which contributed to society’s growing antipathy toward them. In their letters, Engels and Marx agreed that Jews had higher intelligence compared to the other representatives of the bourgeoisie (especially in the context of anti-Semitism) (309); they had experienced centuries of oppression but still managed to withstand it.

In Nazi Germany, various legal acts supported by the Führer were designed to oppress the non-Aryan population (predominantly Jews). Under the Führer’s rule, the National Socialist Party regarded courts as not authoritative enough to delegate the Party’s scope of operations. For example, while Jewish small businesses were not legally subjected to any specific regulations, the National Socialist Party still contributed to the demolishment of their undertakings and the forced closings of their businesses, as mentioned by Kirchheimer (159). Moreover, the rule that prevailed in Nazi Germany did not consider such attacks on Jewish businesses to be social disturbances; indeed, the National Socialist Party was discontent with the Jewish businesspeople who filed complaints about the acts of disrespect and violence that were committed against them (Kirchheimer 160). In the case of the “Jewish Question” explored by Marx, the evolution of the German legal system was a continuous process grounded in the concept of National Socialism.

It is also important to mention the contrasts between the National Socialist labor laws under the rule of the Führer and the labor regulations that prevailed in England, France, and Belgium during that time. To gain support from industrialists, the Führer guaranteed a monopoly and allowed them to determine their labor relations (Kirhheimer 160). However, in other countries at that time, labor relations were determined based on organized social groups of workers and employers; the labor conditions and compensations for work depended on the strength of the organizations. Moreover, intervention from the state took place only in cases where the social groups of employees and employers were unable to agree collectively on a mutual decision.

However, the National Socialist Party’s seizure of all powers in Germany stopped the opposition between labor and capital by replacing Marxist unions with the German Labor Front, which enforced psychological tasks rather than social processes. Consequently, National Socialism in Germany led to the domination of leaders over employees, which resulted in the discontent of the working class. To withstand the opposition of workers, the National Socialist Party integrated a bold juristic innovation (secular courts of honor) that forced employers to treat employees with the respect of “German ethnic comrades” (Kirchheimer 161). In return for this, employees were required to treat their employees without bias, despite the existing differences in social status. Thus, the Führer invested in maintaining and protecting the established social order by integrating a strict psychological atmosphere within industries.

Conclusions

The key ideologies of Marx and Engels regarding issues of law cannot be directly attributed to the historical developments of the legal systems that emerged in Europe and the United States. While Germany embraced socialism under its totalitarian rule, other European countries grounded their legal institutions on open relationships between different layers of society. However, the United States of America moved in the direction of capitalism and the rule of the wealthy over the poor, which went against Marxist ideologies and its idealist beliefs.

Works Cited

Derthick, Martha, and Paul Quirk. The Politics of Deregulation. Brookings Institution Press, 1985.

Domhoff, William. The Higher Circles: The Governing Class in America. Random House, 1971.

Gellhorn, Walter. Individual Freedom and Governmental Restraints. Praeger, 1969.

Green, Mark. “When Money Talks, Is It Democracy?” The Nation, September 5, 1984.

Hammerstrom, Doug. “The Rule of Law Versus Democracy.” What Authority, vol. 5, no. 1, 2002, pp. 1-8.

Kirchheimer, Otto. “Legality and Legitimacy.” The Rule of Law Under Siege, edited by William E. Scheuerman, University of California Press, 1996, pp. 44-64.

Marx, Karl, and Frederick Engels. Collected Works. Lawrence & Wishart, 2010.

Marx, Karl. A Contribution to the Critique of Political Economy. Progress Publishers, 1859.

Capital: A Critique of Political Economy. Progress Publishers, 1887.

Neumann, Franz. “The Decay of German Democracy.” The Rule of Law Under Siege, edited by William E. Scheuerman, University of California Press, 1996, pp. 29-44.

Sutton, John. Law/Society: Origins, Interactions, and Change. Pine Forge Press, 2001.

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IvyPanda. 2020. "American and European Legal Histories and Marxism." November 8, 2020. https://ivypanda.com/essays/american-and-european-legal-histories-and-marxism/.

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