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.
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