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The Marxist Approach. Dates back to the 19 th century – roots in the work of Karl Marx and extends into the 20 th century with the works of the Neo-Marxists and the emergence of the new left in the 1960s.

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the marxist approach
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 Neo-Marxists 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
  • 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.
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
  • 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
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 anti-combine 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.
  • 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.
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.