The emergence of a materialist conception of law

The young Marx’s intellectual development recapitulated in just a few years the slow evolution of Western jurisprudence over many centuries. Nine­teenth-century jurisprudence stood out among the human sciences for its long and hearty resistance to the historicizing and sociological tendencies of En­lightenment thought.

In its stead Marx turned to G.W.F. Hegel, who had long insisted that law be viewed in a wider frame of reference. But Hegelian jurisprudence, while it did subject law to systematic scrutiny, did so from a wholly idealist perspec­tive. By its lights, law had to be understood ultimately as emanating from the metaphysical idea of state. Even after Marx left Hegelianism and, following Ludwig Feuerbach’s humanism, subjected Hegel to a ‘transformational criti­cism’ which made man, not incorporeal concepts, the protagonist of history, the result was still far from social science as we conceive it today. For the ultimate criterion in assessing law remained a normative one: whether and how it served the higher purpose of human self-realization. In effect, Marx and the others who had left Hegelianism (most famously P.-J. Proudhon, in his What is Property? 1840) continued to posit the ancient distinction be­tween natural law, which deserved its sublime status as ‘Law’, and mere man’s law, which did not.

Gradually, Marx evolved towards a more materialist and determinist understanding of law, in which economic concepts held centre stage. A kernel of materialism was present already in Feuerbach’s attack on metaphysics; that kernel was nourished, and its husk of humanist essentialism corroded, by Marx’s growing familiarity with the Scottish Enlightenment, with the French Saint-Simonians, and with the harder-headed Engels. Already in 1843, Marx was referring disparagingly to ‘the speculative philosophy of law, that ab­stract extravagant thinking on the modern state’ (Marx, 1843-44, p. 181). But it is with The German Ideology (1845-46), which for many commentators marks the watershed in the Marx-Engels work between youthful humanism and mature scientism, that the materialist conception of law achieved pri­macy. There they asserted, contra the insular pretence of jurists, that ‘law has just as little an independent history as religion’; it needed rather to be rooted in mankind’s secular evolution through the stages of material culture (ibid., pp.

In the ensuing decades, Marx immersed himself in the study of economics, which he credited with laying bare ‘the anatomy of civil society’. Law assumed a pivotal role in the so-called ‘base-superstructure’ model of social evolution which emerged from his titanic efforts. The classic expression of this model is to be found in A Contribution to the Critique of Political Economy (1859), and is worth quoting at length:

In the social production of their life, men enter into definite relations that are indispensable and independent of their will, relations of production which corre­spond to a definite stage of development of their material productive forces. The sum total of these relations of production constitutes the economic structure of society, the real foundation, on which rises a legal and political superstructure and to which correspond definite forms of social consciousness.... At a certain stage of their development, the material productive forces of society come in conflict with the existing relations of production, or - what is but a legal expression for the same thing - with the property relations within which they have been at work hitherto. From forms of development of the productive forces these relations turn into their fetters. Then begins an epoch of social revolution. With the change of the economic foundation the entire immense superstructure is more or less rapidly transformed. (p. 263)

In other words, in the long run law is determined by resource endowments and the stock of technical knowledge. In the short run, however, law evinces some inertial properties and thus can come into tension with the slowly evolving logic of production. It is this tension that gives rise to revolutionary upheaval. Engels took up this leitmotif in his own works, indeed stressing more baldly than Marx the social determinacy of law, which he termed nothing but ‘the ideologised, glorified expression of the existing economic relations’ (Engels, 1872-73, p. 381).