Tuesday 20 December 2016

Marxism, Jurisprudence

By Lujain Abbas LLB
Introduction
The purpose of this paper is to reflect on the Marxist theories of Law and State. It will seek to establish whether Marxism is a materialistic or idealistic theory of Law. Thereafter, it will continue to intricately elaborate on the why this school of thought shaped my thinking throughout my study of Jurisprudence.

1.1 Materialistic or Idealistic?
Marxism in my understanding can be defined as the concept which propounds that in analyzing society, one should look into the material conditions of man and the society’s history in order to understand its laws. It can also be defined as; the theory which states that for one to conceptualize an idea, one has to experience the material things[1]. In this regard, materialism is the theory of knowledge which is interested in the material things, physical comforts than in spiritual values. In other words, for the mind to respond to an impression, it must determine it first with something material. Idealism on the other hand, is the theory of knowledge which is the practice of forming or believing in ideas and that these ideas are the only real things.
Be that as it may, Marxism is a materialistic school of thought which falls within the realms of positivism. Positivism is that theory of law that suggests; our knowledge is derived only from what we have experienced and that it can be tested and verified from our senses[2] and not from ideas as suggested by the idealists. In a more jurisprudential response, positivism is legal examination of what the law is and not what it ought to be.

1.2 Marxism in Modern Day
Going back to my first definition of Marxism, which can be linked to his concept of history which in summary is for one to conceptualize an idea that is they must experience the material things. I will apply the above definition to the societal context and conclude that for one to understand the laws of the society, one must look into its economic history.
The starting point of ascertaining the economic history is to observe what individuals take into progress and also those that which they shun all together. For that reason, the process of production is a core activity in the development of laws in society. It is with that, that I slowly begun to concur with Marx whereby Law should be seen as a social institution and not something completely alien from society. I entirely believe that law emerges from realities and I will use this reasoning against the example of the acceptance of homosexuals in different parts of the world. In my humble opinion, homosexuality is the problem only the well off face. Why do I say that you would ask, my answer would be if you look at the less fortunate in society, they do not have time to question about their sexuality because they are  busy trying to make ends meet, right? Contrast this to a wealthier individual who doesn’t have to worry about rent, school fees, food et al because they have it all better yet in surplus, so what does that individual do with his time? Dwell into ‘restricted’ territory of having his sexuality questioned by his sub conscious. The realities as you can see are completely different and hence why most African countries will not accept these individuals not just because it’s immoral in their customs but because it is not a priority in their quest for development as was properly put by the President, His Excellency Uhuru Kenyatta.
It is with this that Marxism’s concept of class struggle emerges. The concept of class struggle in a nutshell is where the views of the dominant class (land owners and bourgeoisie) are what gradually become laws in society. Class in my understanding, can be construed as; gender where the male chauvinists overshadow the women; ethnicity for instance in Kenya, where political power tends to favour a specific community over another; race where a certain race is prejudiced over another an example being the Black African Americans in the USA.
From the above concepts, one that combines the two is that of, the concept of state and law comes to play. In this notion, law is said to be an expression of the class relations, but isn’t that true? Let me delve into this for a moment, a while back a school situated in Langata had a land dispute with a supposed politician who was out to grab the schools playground as an extension to his hotel. The events of that dispute were surreal whereby the police were seen launching tear gas canisters at the students who were fighting for what essentially belonged to them.
According to Marx, the state machinery that is, the army and police are a tool meant to subdue the interests of the proletariats in a bid to safeguard the interests of the ruling class. If you notice from the aforementioned hypothesis, you can see it in black and white that that which Marx highlighted is actually what society is facing at this modern time.
Conclusion
Marxism despite its recommendation to go into communal sort of system which may encourage laziness (but I am open to other opinions) is a practical theory of Law, in that one need no special knowledge to understand it because it is what it is. Marx may have submitted his work in such harsh wordings but even in our dreams we wake up and face reality and I think that is what Marx was going for. I conclude that for us to reach the utopia that Rawls had envisaged in his work, we need to reduce the gap between the less fortunate and wealthy class in order to have a balance in society and thus formulating laws that favour both sides of the coin and not just one.



[1] Key issues in Jurisprudence, Omony John Paul
[2] Ibid

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