Marxist and economic theories of law: Marx and Engels to Gorbachev

1. Historical materialism

Karl Marx (1818–1883) and Friedrich Engels (1820–1895) turned Hegel’s dialectic on its head: history moves not by the development of spirit but by conflict between classes produced by material conditions. The key texts are The Communist Manifesto (1848), the Preface to A Contribution to the Critique of Political Economy (1859), Capital (vol. I, 1867), and Engels’s Anti-Dühring (1878) and The Origin of the Family, Private Property and the State (1884).

• Base and superstructure. The relations of production (who owns the means of production, who works) form the economic structure of society, the base. Law, politics, religion and philosophy are a superstructure that rises on it. It is not consciousness that determines being but social being that determines consciousness (the 1859 Preface).
• Stages. Primitive communism, slavery, feudalism, capitalism, socialism, communism. Each transition comes when the forces of production outgrow the relations of production, producing revolution.
• Class struggle. The Manifesto opens with the claim that the history of all hitherto existing society is the history of class struggles.

2. Law in the Marxist account

1. Law is an instrument of class domination. The Manifesto tells the bourgeoisie that their jurisprudence is but the will of their class made into a law for all.
2. Law reflects the economy. Contract, property and the formally free labourer are the legal forms of capitalist exchange. Legal equality conceals economic inequality.
3. Law is ideology. It presents class interests as universal and natural, and so secures consent as well as coercion.
4. Withering away. After the revolution the proletariat will use the State (the dictatorship of the proletariat) to abolish classes; then the State, and with it law, will wither away (Engels, Anti-Dühring). Communist society will be governed by the principle “from each according to his ability, to each according to his needs” (Critique of the Gotha Programme, 1875).

Marxism and justice. Marx was suspicious of appeals to justice: bourgeois justice is the justice the capitalist economy requires, and fair wages are fair by capitalist standards. But his critique of exploitation and alienation carries a moral charge, and later Marxists argued that his ideal is distribution according to need, a standard of justice beyond rights. Rawls’s difference principle and Indian directive principles can be read as liberal answers to that challenge.

3. Lenin

V.I. Lenin (The State and Revolution, 1917) stressed the State as an organ of class oppression and the need for a proletarian State to smash the bourgeois one. During the transition, law would be needed, retaining “bourgeois right” in distribution. After 1917 the Bolsheviks first relied on revolutionary consciousness and people’s courts; the New Economic Policy (1921) brought back civil codes and a measure of private trade.

4. Pashukanis

Evgeny Pashukanis (The General Theory of Law and Marxism, 1924) gave the most original Marxist theory of legal form. He asked why class rule takes the specific shape of law: its form arises from commodity exchange. The legal subject, the bearer of rights who contracts as an equal, is the abstract owner of commodities. Since the legal form belongs to commodity production, there can be no “proletarian law”; socialism will replace law with technical administration and planning. The theory fell foul of Stalin’s need for strong State law; Pashukanis recanted, was denounced, and was executed in 1937.

5. Stalin and Vyshinsky: socialist legality

Under Stalin the withering away was postponed indefinitely. The 1936 Constitution and A.Y. Vyshinsky, as Procurator-General and theorist, defined law as the totality of rules of conduct expressing the will of the ruling class, laid down by legislation, and enforced by the coercive power of the State. Law in the socialist State expresses the will of the working people. This is positivism with a Marxist label, and it coexisted with the show trials Vyshinsky prosecuted: a lesson that “legality” without independence of courts protects no one.

6. Tito, Mao and Gorbachev

• Tito (Yugoslavia). After the 1948 break with Stalin, Yugoslavia developed workers’ self-management: enterprises run by workers’ councils, social rather than State ownership, and decentralisation. Theorists (Kardelj) presented this as the State beginning to wither away in practice.
• Mao Zedong (China). Distinguished antagonistic contradictions (with enemies, handled by dictatorship) from non-antagonistic contradictions among the people (handled by persuasion and mediation). Law was subordinate to policy and the mass line; formal law collapsed in the Cultural Revolution. After 1978, Deng Xiaoping rebuilt a legal system, and the 1999 amendment wrote “governing the country according to law” into the Chinese Constitution.
• Gorbachev (USSR). Perestroika (restructuring) and glasnost (openness) were accompanied by the goal of a socialist law-based State (pravovoe gosudarstvo): supremacy of law over Party and administration, independent courts, and the Committee for Constitutional Supervision (1989). It marked the abandonment of the instrumental view of law shortly before the Soviet Union dissolved in 1991.

7. Western and later Marxism

• Karl Renner (The Institutions of Private Law and Their Social Functions) showed that legal norms such as ownership can stay formally the same while their social function changes: ownership of a factory becomes power over workers. See Legal Concepts, ownership.
• Antonio Gramsci: hegemony; law helps the ruling class rule by consent.
• E.P. Thompson (Whigs and Hunters, 1975) argued that the rule of law is a real restraint on power, an “unqualified human good”, against crude instrumentalism.
• Critical legal studies took the Marxist insight that law legitimates power without its economic determinism (see the note on critical and feminist theory).

8. Criticism

• Economic determinism is too strong: law often shapes the economy (company law, property rights) rather than merely reflecting it.
• The prediction of withering away failed; socialist States produced more law and more coercion, not less.
• Much law (traffic rules, family law, procedural guarantees) serves no obvious class interest.
• Yet the theory directed attention to the social and economic function of law, to unequal access to justice, and to how formal equality can hide substantive inequality, insights that modern constitutions adopted.

9. Marxist ideas in Indian constitutional law

The word “socialist” entered the Preamble in 1976. Article 39(b) and (c) direct the State to distribute the material resources of the community to subserve the common good and to prevent concentration of wealth. In State of Karnataka v. Ranganatha Reddy, 1977 INSC 196, Krishna Iyer J. read “material resources of the community” to include privately owned resources, a view later approved in Sanjeev Coke Manufacturing Co. v. Bharat Coking Coal Ltd. (1982). A nine-judge bench in Property Owners Association v. State of Maharashtra, 2024 INSC 835, held by majority that not every private resource is a material resource of the community, rejecting that reading as tied to a particular economic ideology; whether a resource qualifies depends on its nature, scarcity and the effect of its concentration. The Constitution, the majority observed, does not commit India to any single economic theory. That is the best modern illustration of a Marxist reading of law being tested against constitutional text.

How this is examined

For the 16-mark question: historical materialism, base and superstructure, the four claims about law, withering away, then the later thinkers in one paragraph each, criticism, and the Indian position ending with Property Owners Association. For a short note on Marxism and justice, use the paragraph on justice in section 2 with the Indian illustration.