Legal Naturalism

A Marxist Theory of Law

Olufemi Taiwo

• Publisher: Cornell University Press
• Year: 2015
• Print ISBN: 9780801456596
• eBook ISBN: 9781501701733
• Topic: Law
• Subtopic: Political Philosophy
• Index: Law

Legal Naturalism advances a clear and convincing case that Marx's theory of law is a form of natural law jurisprudence. It explicates both Marx's writings and the idea of natural law, and makes a forceful contribution to current debates on the foundations of law. Olufemi Taiwo argues that embedded in the corpus of Marxist writing is a plausible, adequate, and coherent legal theory. He describes Marx's general concept of law, which he calls "legal naturalism." For Marxism, natural law isn't a permanent verity; it refers to the basic law of a given epoch or social formation which is an essential aspect of its mode of production. Capitalist law is thus natural law in a capitalist society and is politically and morally progressive relative to the laws of preceding social formations. Taiwo emphasizes that these formations are dialectical or dynamic, not merely static, so that the law which is naturally appropriate to a capitalist economy will embody tensions and contradictions that replicate the underlying conflicts of that economy. In addition, he discusses the enactment and reform of "positive law"—law established by government institutions—in a Marxian framework.

1

The Foundation: Marx on Law and Laws

I

This chapter provides a historical foundation for the theory of law presented in this book. For a theory that claims a Marxist pedigree, such a foundation is to be found in Marx’s early writings on law and laws. These texts have been a favorite quarry for psychologists, political theorists, and philosophical humanists who seek an appropriate philosophical anthropology for their explanation of la condition humaine under late capitalism. Others have mined the same texts for elements of a Marxist ethics or the foundations of a moral theory. But Marxist theories of law have in the main ignored these writings or regarded them as being of little significance to the further development of Marx’s views on law, or indeed on anything else.1 Such an attitude tends to make light of the implications of these texts for a correct and adequate Marxist theory of law. I argue that Marx’s early texts contain elements for a more adequate theory. Additionally, an analysis of these works holds promise for a better understanding of Marx’s general methodological orientation and an unraveling of statements and viewpoints in Marx’s work that have baffled commentators. It will also place us in a better position to chart the trajectory of his development: knowing what he began with, we can put the later views in perspective.

Marx was no stranger to law early in his career. He was at different times a student of law, a legal practitioner and, quite often, a victim of law. It should be no surprise that law and its attributes engaged his attention. And his was not a mere academic fascination. As Maureen Cain and Alan Hunt aptly observe, “circumstances forced Marx to take the law seriously into account in his early years. Until the time of his exile, engaging with the law was for him far more than a theoretical pastime.”2 As a political journalist running an opposition journal, Marx directly experienced the full force of censorship and other assaults on press freedom. As his announcement of March 17, 1843, attests, his editorship of the journal Rheinische Zeitung eventually fell prey to the irritations of the censorship.3 Marx’s writings on law at this period of his development hold more than an antiquarian interest. Should we find that in his later years Marx altered his views on law, the reasons for such an outcome would be enlightening. We would be even better served if it turns out that he repudiated his earlier views. What we may not do is behave as if the early writings were merely the confused, exuberant outpourings of a youthful spirit which in the soberness of age were found embarrassing and therefore jettisoned. The basic idea motivating this chapter is that the writings examined here are pivotal to an adequate understanding of the genesis and evolution of the Marxist theory of law. The differences we may find between these writings and the later ones are, I suggest, more of emphasis than of substance, of degree than of kind.

At the commencement of his career, Marx accepted Hegel’s legal rationalism.4 Legal rationalism is the view that law is an embodiment of Reason striving for freedom. Law here means a system of rights. Right is the content of free will acting in the world. Freedom in turn is the essence of right and the goal that Reason strives to reach in the world. Reason is human reason, intelligence, which, being the essence of humans, is that element which separates us from the lower animals: it is the element in which is contained the essence of our humanity. For legal rationalism, then, Reason is the constitutive element of law and, simultaneously, its ultimate criterion of identity and evaluation. What we have identified here as legal rationalism is the equivalent in law of a more general position of Hegel’s which Z. A. Pelczynski has called “political rationalism.”5 What are the principal features of this legal rationalism? For an answer we turn to the Philosophy of Right.

In the Introduction to the Philosophy of Right, Hegel distinguishes between two kinds of law: rational (natural) law and positive law. Natural law is law according to its concept, the concept of Right. Positive law is law posited, law that has become realized in concreto in particular countries, peoples, or nations. This is the first feature of Hegel’s legal rationalism. “The subject-matter of the philosophical science of right is the Idea of right, i.e. the concept of right together with the actualization of that concept.”6 The philosophical study of the concept of right has the task of developing “the Idea out of the concept, or, what is the same thing, [looking] on at the proper immanent development of the thing itself.”7 The object of this philosophical study is, for Hegel, “natural law.” This is distinguished from positive law. “Right is positive in general (a) when it has the form of being valid in a particular state, and this legal authority is the guiding principle for the knowledge of right in this positive form, i.e. for the science of positive law. (b) Right in this positive form acquires a positive element in its content (through the life, stage of historical development, and culture of a people, particular statutes and other legislations, and the mode of adjudication).”8 Positive law is the law of a particular country or people—say, Nigeria or Germany. It is the concrete, specific form in which individuals encounter law, are oriented by it, and are constrained in their behavior. Thanks to positive law, what is abstractly represented in natural law is brought to life for individuals through the various modes of positivization mentioned by Hegel.

Although natural law and positive law are distinct from each other, Hegel cautions that we should not pervert their difference into an opposition and a contradiction. The two kinds of law combine to form, and are moments of, a single whole. In this whole, however, the natural law is the more ultimate of the two, and it is the touchstone by which we determine whether an instance of positive law is ultimately valid regardless of its positivity. Conformity with reason, which natural law embodies, is therefore the criterion by which positive laws are to be evaluated. As Pelczynski puts it, “The belief in rational law as the only legitimate and tenable criterion of laws, institutions, and constitutions is the first basic article of Hegel’s political faith.”9 This distinction between natural law and positive law is of cardinal importance to Hegel’s, and Marx’s, legal philosophy.

The works on law and laws written between 1837 and 1843 bear the stamp of legal rationalism. The abandonment of legal rationalism had its genesis in 1843–44 when Marx retreated first to Kreuznach and then to Paris—the period that gave us the Contribution to the Critique of Hegel’s Philosophy of Law, On the Jewish Question, and the Economic and Philosophical Manuscripts. These were works of transition marked by internalist criticisms of the hitherto accepted Hegelian legacy.

The first postlegal-rationalist works were The Holy Family and The German Ideology, jointly authored with Frederick Engels in 1845. By the time these were completed a transition had been effected, first from idealism to materialism, and then from legal rationalism to what I call sociolegal naturalism. Legal naturalism, a theory built on the foundation described in this chapter, will form the subject matter of the rest of this book. The rest of this chapter will be devoted to a discussion of Marx’s legal rationalism.

II

Marx’s legal rationalism, indeed Marxist legal theory as a whole, rests on a general methodology that informs Marx’s explanation of social phenomena. It is this methodology which, in the area of the general theory of law, permits us to locate Marx and the Marxist theory of law in the natural law tradition. To this methodology Scott Meikle has given the name essentialism.10

Essentialism is an ontological point of view that posits real natures, necessities, and essences and seeks to distinguish these from the alternative point of view, which sees in reality a mass of discrete atomistic bits that have no necessary or organic connection. The latter view is generally called atomism. According to Meikle,

The theoretical core of the opposition between essentialism and atomism (or accidentalism) is absolute. It begins with ancient Greek thought in the struggle between the atomists and Aristotle, carefully reviewed by Marx in his Doctoral Dissertation (so he knew all about it). On the one hand there were Democritus and Epicurus who thought of reality as atomistic small-bits that combine and repel in the void, and who had a hard job accounting for the persisting natures of things, species and genera on that basis. On the other hand there was Aristotle, who realized that no account of such things could be possible without admitting a category of form (or essence), because what a thing is, and what things of its kind are, cannot possibly be explained in terms of their constituent matter (atoms), since that changes while the entity retains its nature and identity over time.11

The difference between the two points of view turns on their respective ontologies. For essentialism, the world is full of organic wholes which have real natures and necessities. On this view, the constituents of the world are things that persist in time. They are made up of units that are organically related in accordance with their underlying natures or essences.

Opposed to the essentialist view is one that denies that things in the world are made up of organically related elements and asserts instead that there is only a mechanical ordering among them. On the latter view, there is no real nature or underlying essence aside from the contingent unity of the parts that make up what we call a whole.12 Between the two views is one that suspends judgment on either claim and refrains from making any claim about what there is in the world. The conflict Meikle is talking about is one of opposing ontologies: “The major conflict between essentialism and reductive materialism is between their respective ontologies. Reductive materialism believes in an ontology of simples, of basic building-blocks lacking complexity, and further believes everything else is reducible to them. Essentialism, on the other hand, admits into its ontology what I have referred to up to now as ‘organic wholes’ or ‘entities’, and does not consider them to be reducible but rather irreducible.”13 Meikle’s general thesis is that “the work of Marx is thoroughly essentialist in every respect, and that this is the source of its explanatory strength.”14

Meikle’s discussion centers on the character of Marx’s ontology. But we are less interested in the ontological thesis than in the methodological thesis. There is no necessary connection between ontological commitments and methodological choices. One should be careful about deriving explanatory models from ontological presuppositions. Sometimes there is a disjuncture between an ontological position and the explanatory thesis held by one and the same person. For instance, one could be an essentialist of a sort that argues that the world is made up of organic wholes (ontological thesis) and still argue that the behavior of those wholes is best explained mechanically. With this caution in mind, I am persuaded that in his explanations, Marx’s methodology is unmistakably and thoroughly essentialist. By essentialism here I mean the methodological thesis that a correct, plausible, and adequate explanation of a thing or process must ultimately be couched in terms of the thing’s nature: that in virtue of which a thing is what it is and the lack of which will make it not what it is but something else. It will presently be made clear how Marx deployed this thesis. In what follows I attempt to sketch Marx’s general methodological postulates. A brief discussion of Marx’s essentialism in legal theory follows. This sets the stage for an examination of Marx’s legal rationalism in the writings from 1835 to 1843. Finally, I analyze and consider the reasons for Marx’s transition to legal naturalism from 1843 to 1845.

III

Marx generally favored and employed essentialist explanations. At several places in his writings he distinguished between explanation by accidents and explanation by essence. Explanations by essence or by nature presuppose that things are not coterminous with what they appear to be: that there is a distinction between things and the phenomenal form in which they are presented to our perception, between appearances that events present to us and what may be their underlying causes. We may say that if things are as they appear, efforts at deep explanation will be pointless.

It is fairly easy to secure agreement that things (physical objects) are not necessarily what they appear to be. People readily agree that some qualities of a thing pertain to its being what it is and that some of its attributes are mere accidents. It is less easy to do the same with the description and explanation of social phenomena. Social phenomena are not things, and it is not obvious that they persist over time or that they have underlying natures. The general trend of Marx’s methodological postulates, however, indicates that we should treat social phenomena in analogous ways. We must go beyond the phenomenal form of social processes to get to their underlying causes.

This demand comes out of Marx’s insistence on seeing social and historical phenomena not as a jumble of unconnected, unrelated, haphazard occurrences but as embodying some form of rationality and regularity that it is the business of social science to discover. The demand to go beneath the surface of social phenomena meant for Marx an attempt to get past the accidental occurrences to the essential happenings of history. This in turn presupposes that things do not happen haphazardly but follow patterns necessitated by their nature or essences. The nature or essence of a thing may be defined by either that quality in virtue of which the thing is what it is or by its characteristic activity (ergon). Those patterns of determination which we find to pertain to the nature of the thing we call its laws. The object of social science is to find the laws of social phenomena.

There is ample evidence that this was Marx’s methodology. In the Preface to the first German edition of Capital, Marx stated that “it is the ultimate aim of [the] work to lay bare the economic law of modern society.”15 His standpoint is one that views the evolution of the economic formation of society as a process of natural history.16 The search for laws of social phenomena, for the underlying essence of social processes, is the hallmark of Marx’s methodology.17

As early as 1837, in a letter to his father, Marx talked of the need for one who wants to understand phenomena to study the objects themselves in their development: “[I]n the concrete expression of a living world of ideas, as exemplified by law, the state, nature and philosophy as a whole, the object itself must be studied in its development; arbitrary divisions must not be introduced, the rational character of the object itself mus...

Table of contents

• Acknowledgments
• Introduction
• 1 The Foundation: Marx on Law and Laws
• 2 A Marxist Theory of Natural Law
• 3 Laying Down the Law: The Positivization of Natural Law
• 4 On the Autonomy of Law
• 5 Change and Continuity in Law
• 6 Should Law Wither Away?
• Selected Bibliography