The relative autonomy of state and law signifies something quite different in a Marxian approach: the state and law are not neutral instrumentalities or centre of pluralist consensus-making. In the capitalist state the autonomy of the political can allow the satisfaction of the economic interests of certain dominated classes, even to the extent of limiting at times their domination. These limits must not adversely affect their overall political power.
The issue of Judiciary
The young Marx said, “The law is universal. The case which has to be decided settled in accordance with the law is a particular case. To include the particular in the universal involves a judgment. The judgment is problematic. The law requires also a judge. If laws applied themselves, courts would be superfluous.”
It is common of modern societies that the task of judging is considered specialized and distinct from that of legislation and administration. Even the serious instrumentalist will have, no way of explaining this splitting of tasks. If the law is a tool of the ruling classes, it is rather inefficient to go on on distributing the tasks of law interpretation and enforcement in such fine detail within centralized state power.
If closely read, Marx is saying here that even if a judge be considered an ineluctable aspect of dominance, the office of a judge is marked by a degree of autonomy that the office of a censor simply does not possess. Judicial power, no matter how sought, or deployed as a tool is bound by certain general principle. And the judge is independent, as he does not belong to an individual or the government. This can even stand against the instrumentalist claim that the judiciary is eminently at the disposal of the dominant interests.
CHAPTER 2
MARXIAN UNDERSTANDING OF LAW, DEVIANCE AND CRIME
Marxian scholars like William Chambliss, Milton Mankoff and Jock Young argue that only Marxian perspective can successfully explain the relationship between law and deviance in the society. There argument is based mainly on the fact that power is held by those who own and control the forces of production. Law is a superstructure that reflects the relationships between the powerful and the relatively powerless i.e., the ruling class and the subjects. As a part of the superstructure, the state, the agencies of social control, the law and the definitions of deviance in general reflect and serve ruling class interests.
As an instrument of the ruling class the state passes laws which support ruling class interests, maintain its power and coerce and control subject class. Laws, unlike the popular belief are not expression of value consensus but a reflection of ruling class ideology. These laws serve to legitimize the use of ruling class power. Thus, a general commitment to laws by members of society as a whole is an aspect of false class consciousness since, in reality laws benefit only the ruling minority. These are the views and implications will be examined in detail.
Who are the makers and who are the benefactors of these laws?
Form a Marxian perspective laws are made by the state which represents the interests of the ruling class. Most often the colonial laws imposed by the Europeans on their colonies in Asia and Africa are cited to support this claim. It can be argued that the entire history of colonial law legislation is that of dominant social class defining as criminal those acts which did not serve their economic interests.
Examples to this case are many. In East Africa, the British established large tea and coffee plantations to raise cash crops for exports. These plantations required lots of cheap labour in order to operate profitably. To force the native Africans to work the colonial rulers instituted a tax which could only be paid by working for wages on the plantations. Non payment of the taxes was a criminal offence, punishable by fines, corporal punishment and imprisonment. Wages were maintained low since higher wages would enable the Africans to pay the tax and return to their villages. Thus by legal device the plantation owners obtained a plentiful supply of cheap wage labour. The salt laws in India which prohibited Indians from making laws because it would destroy the British monopoly on salt sale were also serving the same purpose.
Another example for this is the vagrancy statute enacted in 1349 which made it illegal to provide assistance in the form of money, food or shelter to beggars. On the face of It this law might seem well meaning. However the statute also provided that any unemployed person should be required to work if an employer wished him to. If he refused to work he would be liable to imprisonment. If we go into the background in which this law was passed, it is interesting to note that this was introduced as a response to the black death, a plague which reduced the labour force by half. Feudal landowners resorted to the law in an attempt to make good this deficit. Once instituted, these laws remained in the statute books as they provided a cheap and steady means of labour.
Marxists also draw our attention to the large number of laws dealing with the property in capitalist society. History of criminal legislation in many countries shows the excessive prominence given by the law to the protection of property. These laws were earlier unnecessary in a feudal society where land, unmovable property was the main source of wealth and the landlords were the undisputed masters of the economic resources of the country. However the increasing importance of trade and commerce which involves movable property and the eventual replacement of feudalism by capitalism resulted in a vast number of laws protection the property interests of the emerging capitalist class. The heart of the capitalist economic system is the protection of private property which is by definition the cornerstone upon which capitalist economies function. It is this reason that laws reflect this basic concern.
Laws in national interest
In almost all societies today, including advanced capitalist societies there are laws apparently framed in the national interest, which provide the state with powers to control industry and trade. However Marxists argue that this only surface view and that in reality they do serve the ruling class interests. For example in the USA at the turn of the century hygiene standards in the meat packing industry were appalling. This resulted in illness to the consumers and loss of export markets. With the support of major companies sanitation laws were introduced to control meat processing and packing. These laws were passed out of self interest rather than due to concern over citizens health. The new legislation increased the cost of meat processing which resulted in smaller companies going out of business. Hence the larger companies were immensely benefited. Thus this neat legal device neatly eliminated competition from smaller firms, regained exports and ensured profits to the major players.
Even in the railroad industry competition was intense and firms were undercutting each other in desperate bids for larger shares of market. The major railroad companies approached the state requesting legislation to govern the industry. Laws were passed fixing standard prices which guaranteed profits to the industry. The official justification for this legislation was that it would prevent monopolies. In practice it did quite the opposite. It favored the larger companies by preventing smaller firms form undercutting the prices and thus reduced competition.
In order to prove that these are not isolated cases from the past, we can also cite some contemporary laws. Under the Nixon administration attempts were made to curb the trafficking of illegal drugs. Off these amphetamine, also called as speed was an important one. However 90% of amphetamine on the illicit market was legally manufactured by the large drug corporations. Due to the pressure placed on politicians by the drug corporations, attempts to place stricter controls on amphetamine manufacture and distribution failed. Thus the interest of big capitalists prevailed over public interest.
Do all laws serve capitalist interest?
An important question to be posed at this time is whether all laws are an instrument of the ruling class used to maximize its profits, control its workforce, and further its interests in general. Can all laws be seen in this light? For this Marxist argue that although laws are strongly biased in favor of capitalist interests they do contain gains and concessions towards the laborers and other sections of the society. Examples for these are laws guaranteeing the existence of trade unions and their right to strike and legislation protecting the health and safety of people at work represent gains by the subject classes. However even these laws benefit the capitalist class in an indirect manner. This is because the capitalist system needs a healthy, safe population of producers and consumers but also because it needs their loyality.
It is to be noted at this point that laws are not directly instituted and promoted by the ruling class. Marxists believe that the state can most effectively benefit the ruling class interests when members of that class do not directly govern. Thus government bureaucracies and interest groups are important sources of law, but from a Marxian perspective the law will generally support ruling class interests no matter what its source.
Marihuana legislation in the USA provides an example. The federal Narcotics Bureau was largely responsible for the Marijuana Tax act of 1937 and since that date has initiated much of the legislation prohibiting the use and sale of marijuana. This action can be interpreted as supporting the interests of the ruling class. Marihuana use is associated with groups such as hippies which can be seen as a direct threat to capitalism. Hippies reject the work ethic, achievement motivation and materialism, all of which can be seen as essential to capitalism. This is seen as a threat to unveil the false class consciousness. Marijuana laws can be seen as a useful device for discrediting them and therefore their views and thus ultimately helping capitalism.
Even the legislation guaranteeing Black Americans equal rights under the law in areas such as voting, education and employment can be explained from this perspective. In the deep south, mechanical cotton pickers and chemical weed killers had removed the need for black field hands. Thus they were no longer needed to provide a large, passive, low paid workforce. Movements such as the Southern Christian Leadership Conference led by Martin Luther King may well have threatened capitalist interest. In the 1960’s some black power groups in the urban ghettos were openly anti capitalistic. Concessions such as the civil rights legislation effectively defused the massive, organized black protest movements in the south.
Who break these laws and who are punished by these laws?
Marxists argue that crime is widespread in every social stratum in the capitalist society. The impression given by official statistics that crime is largely a working class phenomenon is simply due to the selective application of the law. Illegal activities of large corporations if brought under the scanner could be staggering. Measured in monetary terms criminal laws of the working class are only a miniscule fraction of those committed by these corporations. A classic example cited for this is the United States Federal Trade Commission which estimated that in the year 1970 robbery accounted to about 55 million dollars, while detectable business frauds exceeded 1 billion dollars. The same goes for India too. The total amount accounting for financial scams by ruling class, especially the politicians will outnumber the money lost by individuals in theft and robbery. Thus crime in many countries including India is a ruling class problem.
We can study the operation of anti trust laws which have as their stated purpose the maintenance of prices at their lowest possible level as another example. These anti trust laws are supposed to maintain competition by preventing monopolies and prohibiting price fixing arrangements between companies. However it is common knowledge that anti trust laws rarely achieve their stated aims. Price fixing cartels are widespread and free competition between large companies is virtually non existent. According to one estimate in America itself if the anti trust laws were properly enforced, the prices would fall by 25%.
Despite the widespread nature of corporation crime, companies are rarely prosecuted under the anti trust laws. Marxists like Pearce argue that if violations are widespread, yet the numbers of prosecutions are small. Thus they argue that these prosecutions must serve a purpose other than the regulation of business. This purpose he claims is to maintain the myth that the law applies equally to the rich and poor and that the state is a neutral body above sectional interests guarding the welfare of society as a whole. A second reason for the small number of prosecutions is to create the impression that corporate crime is minimal. Revelation of the widespread nature of corporation crime may well threaten capitalist power.
Same arguments are put forward by Marxists while discussing organized crime. Organized crime or the mafia as it is popularly know is seen as the servant of the ruling class, to be used when and where it suits its purposes. Some Marxists studying organized crime go a step further and claim that mafia is not the servant of ruling class but an integral part of it. They argue that crime occurs throughout all social strata. The major differences between strata are the types of crime committed and the nature of law enforcement. Power in the form of money is a key factor
Why enforce the law when it is broken?
Many Marxists see crime as a natural outgrowth of capitalist society. They say that the capitalist mode of production emphasizes the maximization of profits and the accumulation of wealth. Economic self interest rather than public duty motivates behavior. Personal gain rather than collective well being is encouraged.
David Gordon another Marxist thinker argues that in a capitalist society crime is rational and it makes sense. From a Marxian perspective the selective enforcement of the law has a number of important consequences. The occasional prosecution of ruling class crime provides the fiction that the law operates for the benefit of society as a whole and that the state and the laws represent the public interest and that the extent of the ruling class crime is small. If we look at the American society, wile only 12% of the population is black, 61% of those arrested for robbery and 50% of those arrested for aggravated assault were blacks.
A Society with out crime
From a Marxian perspective the basis of crime is the private ownership of the forces of production and all that entails. Thus a socialist society, in which the forces of production are communally owned, should result in a large reduction of many forms of crime. In theory individual gain and self interest should be largely replaced by collective responsibility and concern. There is some evidence to suggest that societies which have moved further along the road to socialism than other countries have a much lower crime rate. Though the evidence is shaky and the arguments speculative.
It is said that the crime rate in Western Europe is less than that in USA. The welfare benefits provided for the poor in Europe are more in Europe than in USA. Thus the hostility and frustration produced by capitalism particularly for those at the bottom of the stratification system are reduced by the more humane welfare provisions of Europe. There is also a higher working class involvement in trade unions in Europe. Working class interests are also represented by socialist political parties in every advance industrial capitalist societies except USA.
Is Marxism the answer to all crime?
The application of the Marxian theory to study crime became popular during the 1970s. It promised to provide a comprehensive explanation than previous approaches. Thus it offered the explanations not only for the origins of crime but also the nature of law and law enforcement. In particular, Marxism provided an explanation of deviance and the nature of distribution of power in the society.
However its claim that all forms of deviance can be ultimately accounted for in terms of the economic infrastructure is questionable. Even if Marxian theory proved sufficiently flexible and Marxists sufficiently ingenious to explain all forms of deviance in western society in terms of the capitalist system, problems would still remain. There is ample evidence of crime and deviance in communist society ranging from petty theft to political and religious dissidence. To suggest that activities are hangovers from a previous era and will disappear once the dictatorship of the proletariat has established a truly socialist society is stretching credulity. Marxian theory fails to provide an adequate explanation for deviance in societies where the forces of production are communally owned. There are also some questions like how the Marxian theory tries to explain some heinous crimes like rape.
CHAPTER 3
RADICAL LEFT- THE IMPACT ON LAWS
Starting as a peasant uprising in naxalbari, under the leadership of Charu Majumdar, the naxallite movement has reached mammoth proportions spreading to over 13 states today in India. Though their credibility and power have dramatically fallen in the past decade, they are undoubtedly a force to reckon with. Successive governments have come and gone but none have been able to solve this problem. While lack of political will is one reason, the other hard fact to accept is that they do have the support of the people, though in less numbers.
The issue of naxalism has been looked upon as a law and order problem by some and as a socio economic problem by others. Nevertheless the existence of armed rebels is a serious threat to any legal framework in place. Whether it is being combated through negotiations or through out and out force, it is to be analyzed how these radical left thinkers influence the existing laws.
Conflict with exsisting laws
It is very often reported that the tribals under the leadership of the naxals have encroached upon tracts of forests which are under the protection of the forest department and have resorted to establishments of temporary settlements. This is the most common example we can find to the naxals challenging existing laws. Their argument lies on the ground that the government is trying to impose unreasonable restriction on the lives of the tribals and that the livelihood of the tribals is being destroyed. This is one of the smallest issue but the one in which they come into conflict with the laws most often. The very concept of naxalism which holds the armed revolution as its ultimate goal is a challenge to all the exsisting laws. The arms they carry are by no means legal and all the arms possession laws are there by challenged. Even the trafficking of these armaments has turned out to be a great challenge to our police.
On the issue of violence they claim that theirs is not mad violence but only violence in response to the violence of the state. They also claim that those who resort to violence have, therefore to use ideologies to legigtimize their excersises. And they have to do so without the benefit of a shared authoritative system of communication, like the normative language of law. Unless the ideology is powerfully articulated and disseminated, legal repression stands swiftly legitimized. There is thus form the beginning an asymmetry in power relations notably introduced by the legal system and culture. Police do not so much have to justify strategies and methods of control of naxallites. The naxallites resort to violence not the agents of the state. Terrorism by private groups instantly becomes doubtful of justification; state terrorism still requires and enormous theoretical labour even for its presentation as a problem.
With a shift in objectives of the naxallites more laws are coming into conflict with these violent revolutionaries who have come to believe that armed struggle is the only method of salvation for of the nation. These self appointed red flag bearers have even been discussing about the reservations for minorities. This again is in conflict with the dominant ideologies of the ruling classes and the majority.
It is not on one issue but on innumerous such issues that there is a clash between the existing laws and the radical Marxist thinking of the naxals. There appears to be no way to reach a compromise between their radical understanding of Marxism and the existing laws. Even before coming to the negotiation table in Andhra Pradesh they confirmed that their final aim was only an armed revolution. Thus only minor concessions can be reached about the accord between the Marxist understanding and the existing laws in case of naxallites. The only way to totally curb the movement would have to be an excessive use of force which is not very acceptable. Thus unless the socio economic conditions change, there is no way in which a change can be seen in the ideology which is ever conflicting with the existing laws. Until then as Ramakrishna says, they will continue to make people believe that the Indian constitution is by the bourgeoisie and for the bourgeoisie.
CONCLUSION
Though Marxian ideology and understanding of law seems to be on a conflicting course with all existing system, it is not that Marxian understanding dismisses all laws as being capitalist bourgeoisie serving tools. The role that Marx foresaw law playing in the transition from capitalism to communism and ultimately in communist society flowed from his analysis of the part that it played under capitalism and previous forms of society divided into classes.
For Marx and Engels, the driving force of all economic, political and social life were the contradictions in material and economic life. Essentially, these arise from the conflict between the social forces of production and the relations of production--the class and property relations of society--within which those productive forces have hitherto developed. As Marx wrote in his famous Preface to A Contribution to the Critique of Political Economy, law is one of the ideological forms through which men become conscious of this conflict and fight it out.
Hence, on law, as other social phenomena, Marx and Engels had a dialectical materialist analysis that examined the interaction between the economic base of society and the ideological superstructure. Marx believed that in the end not only would the root causes of social antagonisms--private and conflicting ownership of the productive forces, the division of the globe into nation-states and the inherent social inequality produced by the capitalist market--be overcome, but the great majority of working people would become accustomed to administering their own affairs and those of society without the need for legal and physical coercion
BIBLIOGRAPHY
Articles
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A.Mukherjee, “Naxalbari- Between Past and Present”,37(22) Economic and Political Weekl y (2002) at 2115.
Books
- A.Woodiwiss, Social Theory After Postmodernism( London: Pluto Press, 1990) at 101.
- M.Haralamboss, Sociology Themes and Perspectives (New York: Oxford, 1980) at 441
3. U.Baxi, Marx Law and Justice( Bombay: N.M.Tripathi Ltd, 1993) at 18.
Websites
A.Woodiwiss, Social Theory After Postmodernism( London: Pluto Press, 1990) at 101.
U.Baxi, Marx Law and Justice( Bombay: N.M.Tripathi Ltd, 1993) at 18.
M.Haralamboss, Sociology Themes and Perspectives (New York: Oxford, 1980) at 441.