Marx and Engels versus modern law and economics

So far, so closely parallel to the economic analysis of law as we know it today. Why, then, have Marx and Engels not been better recognized as pro­genitors? In part this may be due to their radical political affiliation, which agrees poorly with the ‘Chicago’ orientation of most present-day practit­ioners; in part, too, it must owe something to their lack of formal credentials in law or economics, and especially to their dismissive attitude towards jurists (whom they regularly termed ‘ideologues’, purveyors of ‘mystification’ and ‘false consciousness’), who today bulk so large in the field.

First, their considerations of law, substantial though they may appear in the narrow compass of this entry, were not in fact of paramount importance to them: considered in the context of the many thousands of pages of their collected works, their comments were strewn thinly indeed on the ground. Second, in explaining law, Marx and Engels privileged the logic of conflict over that of cooperation, of distributional struggle over allocative efficiency; this much is clear from their discussion of the enclosure of common lands, and it permeated their approach at large. Third, they occasionally softened their position of strict economic determinism, accepting that law could be shaped also by forces that had nothing to do with the forces of production, including such plainly ‘superstructural’ factors as the legalistic mind-set itself:

As soon as the new division of labour which creates professional lawyers becomes necessary, another new and independent sphere is opened up which, for all its

Karl Marx (1818-83) and Friedrich Engels (1820-95) 625 general dependence on production and trade, has also a specific capacity for reacting upon these spheres. In a modern state, law must not only correspond to the general economic condition and be its expression, but must also be an inter­nally coherent expression which does not, owing to internal conflicts, contradict itself.

Jurisprudence which denies the economic basis of law ‘forms what we call ideological outlook, influences in its turn the economic basis and may, within certain limits, modify it’. This rings true, but it has not had much of a hearing in the recent literature.

Fourth, we find reflected in the Marx and Engels approach to law the millenarian impulse that suffused their view of social evolution as a whole. After the victory of the proletariat, crime would be all but eliminated and criminal law correspondingly obviated; the coercive monogamy of male domi­nation would be replaced by the consensual monogamy of love; in sum, with the end of human self-alienation, law would lose its raison d’etre: ‘state interference in social relations becomes, in one domain after another, superfluous, and then dies out of itself; the government of persons is replaced by the administration of things, and by the conduct of processes of produc­tion’ (Engels, 1885, p. 268). Mankind, they believed, was not conclusively fallen.

Finally, underpinning Marxist chiliasm was a more pervasive contrast with today’s law and economics, namely that Marx and Engels tended to analyse legal phenomena by reference to the will or needs of ambiguous entities like ‘class’, ‘state’, ‘society’, the ‘mode of production’ or even ‘history’ itself. This approach is excluded by the methodological individualism prevalent in economic analysis today; and rightly so, in so far as it prevents us from appreciating the fact of intra-class conflict, the fact that the state might not act as an ‘executive committee’ for its own interests, let alone anyone else’s, and the fact that history is not going anywhere in particular.

Bibliography

Works by Marx and Engels

Engels, Friedrich (1843), Outlines of a Critique of Political Economy; reprinted in Karl Marx, Frederick Engels: Collected Works, Vol. 3, pp.

Engels, Friedrich (1845a), ‘The Condition of the Working Class in England’; reprinted in Karl Marx, Frederick Engels: Collected Works, Vol. 4, pp. 295-596, London: Lawrence & Wishart, 1975.

Engels, Friedrich (1845b), ‘Speech in Elberfeld’; reprinted in Karl Marx, Frederick Engels: Collected Works, Vol. 4, pp. 243-55, London: Lawrence & Wishart, 1975.

Engels, Friedrich (1845c), ‘History of the English Corn Laws’; reprinted in KarlMarx, Frederick Engels: Collected Works, Vol. 4, pp. 656-61, London: Lawrence & Wishart, 1975.

Engels, Friedrich (1850), ‘The English Ten Hours’ Bill’; reprinted in Karl Marx, Frederick Engels: Collected Works, Vol. 10, pp. 288-300, London: Lawrence & Wishart, 1978.

Engels, Friedrich (1872-73), The Housing Question, reprinted in Karl Marx, Frederick Engels: Collected Works, Vol. 23, pp. 317-91, London: Lawrence & Wishart, 1978.

Engels, Friedrich (1884), The Origin of the Family, Private Property and the State; reprinted in Karl Marx, Frederick Engels: Collected Works, Vol. 26, pp. 129-276, London: Lawrence & Wishart, 1990.

Engels, Friedrich (1885), Anti-Duhring; reprinted in: Karl Marx, Frederick Engels: Collected Works, Vol. 25, pp. 5-309, London: Lawrence & Wishart, 1987.

Engels, Friedrich (1890), ‘Letter to Conrad Schmidt’; reprinted in Karl Marx, Frederick Engels: Correspondence, 1846-1895, pp. 477-84, New York: International Publishers, 1934.

Marx, Karl (1837), ‘Letter to his Father in Trier’; reprinted in Karl Marx, Frederick Engels: Collected Works, Vol. 1, pp. 10-21, London: Lawrence & Wishart, 1975.

Marx, Karl (1842a), ‘Philosophical Manifesto of the Historical School of Law’; reprinted in Karl Marx, Frederick Engels: Collected Works, Vol. 1, pp. 203-10, London: Lawrence & Wishart, 1975.

Marx, Karl (1842b), ‘Debates on Freedom of the Press and Publication of the Proceedings of the Assembly of the Estates’; reprinted in Karl Marx, Frederick Engels: Collected Works, Vol.

Marx, Karl (1842c), ‘Debates on the Law on Thefts of Wood’; reprinted in Karl Marx, Frederick Engels: Collected Works, Vol. 1, pp. 224-63, London: Lawrence & Wishart, 1975.

Marx, Karl (1843-44), ‘Contribution to a Critique of Hegel’s Philosophy of Law. Introduction’; reprinted in Karl Marx, Frederick Engels: Collected Works, Vol. 3, pp. 175-87, London: Lawrence & Wishart, 1975.

Marx, Karl (1847), The Poverty of Philosophy; reprinted in Karl Marx, Frederick Engels: Collected Works, Vol. 6, pp. 105-212, London: Lawrence & Wishart, 1976.

Marx, Karl (1859), A Contribution to the Critique of Political Economy. Part One; reprinted in Karl Marx, Frederick Engels: Collected Works, Vol. 29, pp. 257-417, London: Lawrence & Wishart, 1987.

Marx, Karl (1867), Capital, Vol. 1; reprinted in Karl Marx, Frederick Engels: Collected Works, Vol. 35, London: Lawrence & Wishart, 1996.

Marx, Karl (1894), Capital, Vol. 3; reprinted New York: International Publishers, 1967.

Marx, Karl (1972), The Ethnological Notebooks of Karl Marx (Studies of Morgan, Phear Maine, Lubbock), Assen: Van Gorcum.

Marx, Karl and Friedrich Engels (1845-46), The German Ideology; reprinted in Karl Marx, Frederick Engels: Collected Works, Vol. 5, London: Lawrence & Wishart, 1975.

Other works

Cain, Maureen and Alan Hunt (1979), Marx and Engels on Law, London: Academic Press.

Kelley, Donald R. (1990), The Human Measure: Social Thought in the Western Legal Tradition, Cambridge, MA: Harvard University Press.

Landau, Peter (1973), ‘Marx und die Rechtsgeschichte’ [‘Marx and legal history’], Tijdschrift voor Geschiedenis, 41, 361-71.

Pejovich, Steve (1982), ‘Karl Marx, property rights school and the process of social change’, Kyklos, 35, 383-97.

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