Marxism and Law

Charles Brown CharlesB at SPAMCNCL.ci.detroit.mi.us
Thu Mar 1 09:49:38 MST 2001


Marx's essays on " A Contribution to the Critique of Hegel's Philosophy of Right
(Law)"  address legal issues.

CB


((((((((
Marxist Critique of Ethics
... Treatise, Ch. II. For Hobbesian social contract theory as capitalist ideology, see
Law and Marxism, EB Pashukanis, London, 1978. Similarly, see Marx's comment ...
www.its.uidaho.edu/mickelsen/texts/Marxist%20Critique%20of%20Ethics.htm

A Marxist Critique of Western Ethics(1)
by
J. Carl Mickelsen

1. Ideas do not develop in a vacuum, but in a concrete historical context (which
includes the existence of other ideas).

2. Ideas are thus historical products reflecting their genesis (which may in turn
impact the context from which they arose).

3. Concomitant with the development of capitalism, was the development of the notion
of the fundamental equality of individuals and the rights corresponding thereto. The
inevitable extension of abstract equality in the sphere of civil society was its
application to the sphere of political society.(2)

4. Assuming (uncritically) the standpoint of the given and its accompanying ideology,
modern ethics starts from a premise of equality of individuals.(3)

5. The formal equality of rights masks the fundamental inequality of class.(4)

6. Thus, insofar as ethics starts from a premise of equality, it starts from either a
false premise or (in some respects a distinction without a difference) merely an
"ideal" premise.

7. Insofar as it starts from a false premise (about what is in fact the case), the
conclusions of ethics are unsupported.(5)

8. Insofar as it starts from an "ideal" premise (about what ought to be the case), the
conclusions of ethics have no actual application.(6)

9. To actualize ethics, to make its conclusions meaningful - supported and applicable
- requires abolishing class (with its inherent inequality).(7)

10. The problems of ethics (and philosophy in general) are at their root practical,
not theoretical, problems.(8)



1. This paper was initially developed for a presentation at a "Diversity Workshop"
conducted by the Philosophy Department at the University of Idaho in the Summer of
1999 (and has subsequently been modified).  The introductory ethics course (Phil 103)
was the primary focus of concern.  (Not surprisingly, the issue of "class" is not
generally included in academia's notions of categories warranting inclusion.)

The most obvious critique of ethics from a Marxist perspective is via the concept of
ideology (itself under attack - see, e.g., The Politics of Truth: From Marx to
Foucault, Michèle Barrett, Stanford U. Press, 1991). As will become apparent, I have
chosen a somewhat modified route. By "ethics" I am referring to secular, social ethics
- the norms that (may) apply in dealing with other persons.

2. Most basically, in the civil sphere, no one was privileged by status - individuals
equally had the abstract right to buy and sell as they pleased. Of course, who counted
as an individual, in both the civil and political spheres, was not a simple given but
was a historical product which developed with the development of capitalism. Thus, who
was seen to count in the "all" or the "we" in such rhetorical flourishes as "all men
are created equal" or "[w]e the people" changed over time. (Declaration of
Independence; Constitution of the United States.) Words do not necessarily mean what
they say.

The correspondence between the civil and political spheres was not immediate (nor is
it yet complete). "In England it became the unwritten law of the Constitution that the
working class must be denied the vote. The Chartist leaders were jailed, [etc.] . . .
Inside and outside England, from Macaulay to Mises, from Spencer to Sumner, there was
not a militant liberal who did not express his conviction that popular democracy was a
danger to capitalism." (Karl Polanyi, The Great Transformation 226).

In the U.S., the notion of equality was codified in the 14th Amendment's equal
protection clause with the belated recognition of blacks as persons (v. chattel).
Ratified in 1868, the 14th Amendment was an outcome of what may be loosely
characterized as the defeat of agrarian/feudal interests by industrial capital wherein
slaves were transformed into wage-laborers. The extension of equal protection to women
(who had only gained the right to vote with the ratification of the 19th Amendment in
1920) as class warranting heightened protections - stemming from the Idaho case of
Reed v. Reed, 404 U.S. 71 (1971) (dealing with the statutory preferencing of men over
women as administrators of a decedent's estate) - occurred only after women had become
an enduring and significant factor in the labor market.

How the ideology of equality serves the interests of capitalism and provides its
self-justification is beyond the scope of this presentation. Similarly, how the
current concerns in academia for "diversity" arise out of and serve the interests of
the globalization of capital will not be discussed.

3. This is not necessary nor is it universal - it is simply (and understandably re:
ideology) dominant. Notable exceptions include Nietzsche who, looking backward in his
critique of modernity, states: "Moralities must be forced to bow first of all before
the order of rank; their presumption must be brought home to their conscience - until
they finally reach agreement that it is immoral to say: 'what is right for one is fair
for the other.'" (Beyond Good and Evil, § 221.) Looking forward, on the other hand,
Leon Trotsky, being fully cognizant of the inequalities of class, states: "The appeal
to abstract [i.e., supposedly universally applicable] norms is not a disinterested
philosophical mistake but a necessary element in the mechanics of class deception."
(Their Moral and Ours, 22.)

Although it is not central to the basic argument propounded herein, I believe it is
useful to note that starting from a premise of equality, and the (often unstated)
premise that (as rational beings) we should act rationally, various ethical systems
necessarily take the form of some variant of the "golden rule" and are in this
(abstract) respect identical. The extrapolated argument underlying these systems is
something akin to the following:

If everyone is fundamentally equal, then no one is inherently privileged.
If no one is inherently privileged, then (without more) there is no reason to treat
persons differently.
If there is no reason to treat persons differently, then, insofar as we act
rationally, we should treat every person equally.

This thesis cannot be fully supported here. Suffice it to identify Hobbes' belief that
the golden rule is a summary statement of the laws of nature (Leviathan, Chapter 15),
Spinoza's statement (from a standpoint of utility) "that men who are governed by
reason . . . desire nothing for themselves which they do not also desire for the rest
of mankind . . . ." (Ethics, Pt. IV, Prop. XVIII, Note), Kant's categorical imperative
- requiring both the possibility of the theoretical and practical universalization of
norms (Grundlegung zur Metaphysik der Sitten), Mill's contention that the golden rule
expresses the "ideal perfection of utilitarian morality" (Utilitarianism, Chapter 2),
and Sartre's fundamental notion that authenticity requires that the individual live
the categorical imperative: "But really, one should always ask himself, 'What would
happen if everybody looked at things that way?' There is no escaping this disturbing
thought except by a kind of double-dealing." (Existentialism, 18-19; see also Being
and Nothingness, Pt. Four, Ch. One, III). Although Kant expressly distinguished the
categorical imperative from the golden rule (and they are not identical), I believe
that it is the property of universalization - the inherent privileging or exclusion of
no one - that is key to each (and to 14th Amendment equal protection).  (Indeed, even
the infamous libertine, the Marquis de Sade, writes that "the entirety of human morals
is contained in this one phrase: Render others as happy as one desires oneself to be .
. . ."  Dialogue between a Priest and a Dying Man.  See also La Mettrie's Man a
Machine: "Now how shall we define natural law?  It is a feeling that teaches us what
we should not do, because we would not wish it be done to us.")

The golden rule (Bible, Matthew 7:12), of course, predates capitalism and at its root
reflects, I believe, a notion of the equality of souls before God. See Hegel, Lectures
on the History of Philosophy, Intro. A, 3, c (49). To my knowledge, however, the
notion of equality did not become secularized and gain a lasting foothold until the
modern era when a money economy began to break loose the feudal bonds. See, e.g.,
Hobbes who, in 1651, radically (for his era) maintains that persons are fundamentally
equal and morality hinges on contract of free individuals. (In this regard, see also
Spinoza's A Theologico-Political Treatise, Ch. XVI, and Political Treatise, Ch. II.
For Hobbesian social contract theory as capitalist ideology, see Law and Marxism, E.B.
Pashukanis, London, 1978.  Similarly, see Marx's comment on Rousseau's Social Contract
in Grundrisse, 83.  As indicated there, the standpoint of the atomistic individual is
not "history's point of departure" but is a "historic result" premised, in part, on
"the dissolution of feudal forms of society.")

4. See generally Marx's comments regarding the contradictions between the sphere of
circulation and the sphere of production. The sphere of circulation is seen as "a very
Eden of the innate rights of man . . . [where] alone rule Freedom, Equality, Property
and Bentham." (Capital I, 176) "This phenomenal form, which makes the actual relation
invisible, and, indeed show the direct opposite of that relation, forms the basis of
all the juridical notions of both labourer and capitalist, of all the mystifications
of the capitalist mode of production, of all its illusions as to liberty, of all the
apologetic shifts of the vulgar economists." (Capital I, 540) Once the veil covering
the sphere of circulation is pierced, not freedom, but wage slavery is revealed: "The
Roman slave was held by fetters: the wage-labourer is bound to his owner by invisible
threads. The appearance of independence is kept up by means of a constant change of
employers, and by the fictio juris of a contract." (Capital I, 574) The wage-laborer
must sell his/her labor power to the capitalist class or perish from want of
necessities. The exchange of this commodity (labor power) for wages, moreover, is
necessarily unequal - profits (the end of capitalist production) are premised on
extracting more (surplus value) than what is paid for. The conditions of labor are
controlled by the capitalist, etc. While some of the more obviously odious outcomes of
capitalist production have been mitigated by social legislation, the vast majority of
this legislation has been an immediate outcome of class struggle (e.g., work hours,
child labor, OSHA) or an attempt by the capitalist class to protect the system itself
from total destruction as a result of this struggle (e.g., the Wagner Act of 1935
protecting the right to unionize). All of these changes have left the fundamental
structure of the system itself unchanged.

The inequality in civil society is at the same time an inequality in political
society. While formally the principle of "one person, one vote" obtains, if the
political process itself is examined, the truth is far closer to "one dollar, one
vote." Inequality pervades each branch of government. One need only mention "special
interests" (legislative), "O.J.," (judicial), and "selective (and often brutal)
enforcement" (executive), to make this clear. "[M]oney doesn't talk, it swears." (B.
Dylan, "It's Alright, Ma (I'm Only Bleeding).")

5. When the conclusions are nevertheless applied, the outcomes are inherently
inequitable. Ironically, herein lies the virtue of the elitist Aristotle's "relative
mean." Also, his analysis of "mixed acts" (Nicomachean Ethics, Bk. III, 1) is
instructive in that the fewer options one has by virtue of class, the less acts are
purely "voluntary" and the more they assume the character of being "mixed." They must
be judged by different standards accordingly.  (It may not be surprising that, after
Heraclitus, Aristotle was reportedly Marx's favorite ancient philosopher.)

6. As noted by Trotsky (note 3, above), while they may have no application they
nevertheless serve the ideological function of fostering a false consciousness that
perpetuates the status quo.  That such false consciousness arises may be due to the
illusory and apparently abstract nature of values themselves.  "Health, leisure,
education, truth, beauty, etc., may appear to be objective values, since all classes
seem to strive for them.  But they have a different content and meaning for different
classes.  Once ask in any concrete situation of conflict, 'Whose health is valuable,
what kind of leisure and education is to be encouraged, when is truth-speaking a
value,' and in a class society the answer will reveal a class standpoint." (Sidney
Hook, From Hegel to Marx, 53.)

7. Even Mill, in his own (English, reformist) way recognizes this: "As the means of
making the nearest approach to this ideal [the golden rule], utility would enjoin,
first, that laws and social arrangements should place the happiness, or . . . the
interest, of every individual, as nearly as possible in harmony with the interest of
the whole . . . ." (Utilitarianism, Ch. 2.) Sartre, of course, goes further and
attempts to correct the one-sided subjectivism of his earlier work by incorporating
existentialism as a mere moment within the overarching philosophy of Marxism.
(Critique of Dialectical Reason.)

Marx identified the proletariat as the class that would abolish class (capitalism). It
was thus the universal class - the class that in realizing its own ends would
actualize humanity's own inherent possibility, its essence - freedom. Communism, the
endpoint of this process, is thus viewed as the condition "in which the free
development of each is the condition for the freedom of all." (Manifesto II; see also
Capital I, 592.) Irrespective of whether or not Marx was correct in identifying the
proletariat as the class historically destined to affect this change, the abolition of
class is the condition precedent for the secular universalization envisioned by Marx.
When/if such universalization is actualized, therein lies not only the possibility of
actualizing ethics, but (what is perhaps the same) the universal possibility of
equating ethics and law. (As portrayed in Plato's Crito, such equation was proper for
Socrates personally, since, as a member of the ruling class, it was his law.)

It should be obvious that much of what has been said with respect to class, may
pertain as well to such distinctions as gender, race, and disability. The fundamental
difference is that class is strictly a social product and its resulting inequalities
are socially necessary within capitalism. Race, gender, and disability are
biologically based. Like class, however, their resulting inequalities are
fundamentally social in nature. While these inequalities can serve the interests of
capitalism (especially in maintaining divisions within the working class) they are not
structurally necessary to it. Thus, while there may be a commonality of issues, the
inequalities based on race, gender, and disability can be theoretically overcome
within capitalism whereas the inequalities based on class require the abolition of
capitalism itself for their negation. This difference may have significance for moral
theory. Given the contingent, unessential character of the inequalities based on race,
gender, and disability, and disregarding class, it may not in principle be erroneous
to assume equality and to view the inequalities themselves as moral aberrations.

8. In ethics, this is apparent on an immediate level in that a conflict between one's
pleasure and one's duty (assuming such a thing as duty) can only arise insofar as one
has not learned to take pleasure in doing one's duty.  ("For that reason, as Plato
says, men must be brought up from childhood to feel pleasure and pain at the proper
things; for this is correct education." Aristotle, Nicomachean Ethics, Bk. II, 3.) The
dilemma of whether to expend resources on luxuries when other people's necessities
have not been met can arise only because there are persons who live without
necessities, i.e., in poverty.  Etc.
    "The philosophers have only interpreted the world, in various ways; the point,
however, is to change it." (Marx, Theses on Feuerbach, XI.)





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