Philosophy Is Aptly Demarcateds Philosophy
Philosophy is aptly demarcated into two; descriptive and normative, what is and what ought to be, the real and the ideal. The demarcation seems simple enough at first but a considerable amount of ink has been used in clarifying the technicalities.
Normative sciences are only possible where one judges something to be either good or bad, where valuation is implied e.g. ethics. Normative sciences are occasionally referred to as art. Descriptive sciences will still exist if a moral value was not put into question, where the science is approached in a comparatively disinterested manner, stating simply what is. Below are certain factors of this demarcation which need to be brought to the front for the sake of this dissertation.
Criticism of the demarcation
The issue arises where descriptive sciences do not, themselves, proclaim to give a complete point of view but rather a particular abstract perspective. It is not possible to claim that a separate and different part of the whole experience is being dealt with in this situation since each part of a science is conceived with the entirety of the experience "so far as it is relevant to his problem and capable of being dealt with by his methods" as stated by Albee (1907, p.41). He goes on to clarify that scientific description is technical and abstract for the purpose to clearly define the true problems and methods of the science.
Albee is of the opinion that the rules and laws discovered are at the same time more and less than "mere descriptions of the behaviour of reality". The abstract and technical point of view taken by the author in the description of these laws makes them less than descriptive in nature, while the fact that every such arrangement of rules seeks universal validity makes them more than descriptive. Albee considers scientific laws to be "hypothetical universals", since they refrain from stating what actually happened, the real process that took place. Rather they opt for listing certain conditions which need to be met for the laws that they believe to be 'universal'. Adding to this the fact that each science tries to explain the laws of orderly change from its own point of view, we can easily come to the conclusion that no science is merely descriptive.
Taking the existential point of view as a move towards rational construction, claiming that the procedure will be teleological, i.e. with a certain set aim, and hence normative. He does take into consideration the overlap of the real and the ideal.
Dependence of the normative on the descriptive
Husserl (n.d.) as cited in Sabine (1912) takes the view that all normative and practical sciences use one or more theoretical science as a base to rest on. An object must have certain qualities which lead to the valuation of it being either good or bad. The qualities which are necessary for the object to be good or bad can be part of the judgement of value when the direction towards the normative is taken. As Sabine goes further to explain:
"â€¦ values are relative and comparative; we do not merely judge things to be good or bad but also better or worse, best or worst. In consequence a group of particular norms implies a fundamental norm which defines the place of the subordinate norms in a system of values." (Sabine, 1912, p.437)
He goes on to use the example to the "greatest happiness principle" in utilitarian philosophy as a fundamental norm, basing his thesis on logic.
"Every normative proposition of, e.g., the form "An A should be B" implies the theoretical proposition "Only an A which B has the properties C" in which "C" serves to indicate the constitutive content of the standard-setting predicate "good" (e.g., pleasure, knowledge, whatever, in short, is marked down as a good by the valuation of fundamental to our given sphere). The new proposition is purely theoretical: it contains no trace of the thought normativity. If, conversely, a proposition of the latter form is true, and thereupon a novel valuation of a C as such emerges, and makes a normative relation to the proposition seem requisite, the theoretical proposition assumes the normative form." (Husserl, n.d., p.4)
The fundamental norm is said to hold a normative science together - the principle of unity in the normative science, as compared to the descriptive science where the regularity of the objects of the science themselves is the principle of unity. The descriptive science falls short on the "attitude of value" (Sabine, 1912) being the object of investigation, with the attitude being given the controlling interest only in the application of standards. The normative entails the object being evaluated, and hence applied. It depends on the descriptive to set out the factual content which eventually leads to the valuation. So it is safe to say that the descriptive science is the basis of the normative science, the normative being a new grouping of facts chosen from the theoretical science and arranged into a new form based on their relation to the fundamental value. There can be no possible ulterior motive in the theoretical science, the only type of interest being of the disinterested kind. The disinterested interest is an exception. All other interests will arrange things based on a human or rather an evaluative element. The theoretical science has the advantage of transparent objectivity.
Applying the descriptive normative demarcation in jurisprudence
Jurisprudence allows for a theory to be descriptive and normative at the same time. Even the subject matter of a descriptive theory can be normative in the sense that the law is THAT people ought to behave. The subject matter of the law usually is normative, requiring the audience to behave in a certain manner. The question arises though, would the same issue withstand if the subject matter is law itself?
H.L.A. Hart refers to The Concept of Law as a work on "descriptive sociology" in the Preface to it. For Hart, his work having normative tendencies was insignificant as long as it did not include morals. What can be considered as another linguistic anomaly by Hart, in my opinion, used for this descriptive-yet-normative or rather normative-sans-morals science is meta-theoretical.
Diana Constantinescu (2009), building on the work of Stephen Perry, lists down Hart's methodology which shows normative aspects. She starts with Hart's (1) conceptual analysis. She maintains that conceptual does not mean giving a definition for law but rather identifying a central set of elements, which is possible by looking at the use of the word "law". Hart shows his realism, by agreeing upon a link between words and reality. As Constantinescu (2009) defends Hart: "... legal terms can be seen as "symptoms" which indicate the presence of a legal phenomenon. Therefore, this assumption seems not so different from the realist assumptions of scientists, even though it imposes normative elements". The conceptual analysis by Hart also holds words to have paradigmatic meaning but it is assumed that Hart's rebuttal to this being a normative assumption would be that a change in the meaning of the word would mean a change in the law.
She then moves her attention to Hart's (2) functional analysis. Constantinescu points out that "Functional analysis is strongly connected to conceptual analysis because the function of a legal device/institution is reflected in how people talk about it not only in court but outside of it as well". Hart chose to emphasise on the functions of law even though it hindered the uniformity of his whole theory. While some would argue in favour of a function being a descriptive science, others such as Jules Coleman, as pointed out by Constantinescu (2009), holds "further disagreement on the function of law is normative, not factual, because it's about the law's proper function, not its actual function". Choosing one function over another is a normative exercise, Constantinescu going further by saying "Even if Hart would claim to deal solely with the actual function of law, identifying it still contains normative elements because it is based on "getting the point" of law". Hart is defended though, by comparing legal theory to other sciences such as sociology which also uses functions to describe a subject matter.
Constantinescu then introduces us to (3) "pseudo-observation" and (4) "establishment of the point of view" as two instruments which Hart uses to try and bring his theory closer to descriptive sociology, but this could actually backfire. Pseudo-observation is basically Hart's tone of describing events and possibilities as facts, based on empirical research, such as describing how members of the legal fraternity will act. Since this is what Hart wants them to do, it can be said that Hart takes the ideal types of interaction and forces it upon his audience as a descriptive science. The issue stands because choosing an ideal type of interaction is based on a normative decision making process of choosing which is the ideal type of interaction. Hart, instead of choosing a point of view of an outsider, the route usually taken in descriptive sociology, goes for an internal point of view. The point of view of an "an agent implicated in legal phenomena" (Constantinescu). An insider who is able to comprehend what is going on in the institution that the law is. It might not be possible to say that his decision in choosing an internal point of view was arbitrary, but an internal point of the law is still not scientific, as Constantinescu chooses to quote Perry that "the starting point of inquiry is participant's own conceptualization of their practice, and from the perspective of the descriptive-explanatory approach this is an arbitrary limitation". Hart's choice of using an internal point of view might not be arbitrary but criticism can arise in him having used normative reasoning in making this decision.
Hart lays down numerous legal concepts, defining them based on (5) central characteristics. He allows room for concepts not based on any standard or characteristic, intentionally avoiding any form of uniformity. The selection of this characteristic, as any process of selection would be normative. But as Hart would argue, he successfully avoids any dependency on morals, the distinctions being based on predictability and coherence, hence metatheoretical.
The method of an (6) "evolutionary account" is used to in The Concept of Law to show how it is necessary for the primary and secondary rules to merge and form a legal system. This method is based on explaining the gaps left by the primary rules and how secondary rules fill them up. This comparison between two legal systems cannot even be considered metatheoretical since it is clearly evaluative. Hart's defence is laid out by Constantinescu as follows:
"Hart would probably reply that the standards of comparison between primitive and modern systems are not normatively weighty, but only claim to 'illuminatingly' reflect how people talk about their system. In conclusion, his endeavour would indeed suppose normative standards, but these standards are predictability and correspondence with (linguistic) reality - they are metatheoretical, and not moral, standards."
Another critical aspect to Hart's methodology is (7) "identifying assumptions". Now usually this would be taken to be a descriptive process, since it tells the audience the depth of the research and whether there any limitations to it. But Hart takes it further. Rather than simply presenting his own assumptions he also presents in his theory the assumptions held by society. The "minimum content of law" is presented as a fundamental assumption to any society, the assumption in direct conjunction with survival, the main aim of human society. Hart claims that without these minimum principles of law, the law and moral will not push society in the direction of survival, thus law and moral will have no purpose. This is an evaluation, a moral and political claim about human nature and society according to Constantinescu. It would only be possible for claim to be descriptive if Hart based "the minimum content of law" to be based on empirical research.
The idea of the above methodological aspects is not to present Hart in wrong, but rather to point out that the study of jurisprudence and legal theory is not simple enough to be demarcated into descriptive and normative. We then look towards other forms of demarcation.II
The purpose of a modern legal theorist was brought forward by Jeremy Bentham based on his criticism of previous legal theorists to not being able to differentiate between what is and what ought to be. He wished to derive "conventionally acknowledged truth from the principle of utility" (Baumgardt, 1945) since he was of the opinion that this was the only way moral conventions as well as open moral questions, both, could be pondered on properly. For Bentham proving the validity of a moral truth does not hold immediate practical significance since its significance is only theoretical. The practical significance a moral truth achieves is with regard to "unsolved moral questions connected with accepted truths" (Baumgardt, 1945). So answering the unsolved moral questions is the main aim, but this does not mean that acknowledged truths can be overstepped. As Baumgardt lays out Bentham's view "... acknowledged truths in ethics ... must be examined first in [their] own account and not merely for the sake of training the mind". This is why Bentham emphasizes on the proof of validity of acknowledged truths. This seems to reach for the same ideal as a fundamental descriptive norm but allows room for valuation to certain extent, which, in my opinion, is necessary in certain specific sciences such as the law. To help fulfil the criteria to move forward his principle of utility and the issue he raises with other legal theorists, Bentham came up with his own demarcation: expository and censorial jurisprudence.
Expositor v Censor
The expositor is someone who explains what the law is as he supposes it to be, and as specifically stated by Bentham, he deals with facts. His job is to observe what the legislature and the judge have already done.
A censor is he who explains how law ought to be, dealing with reasons. It belongs to the censor to lay down what the legislature and the judge ought to do in the future, since his emphasis will always be on the word duty.
Bentham's is and ought move on a tangent to the normal linguistic usage of the terms. For the sake of the ought, the moral censor needs to demand conclusive reasons as to why it ought to be, even though based on normal linguistic terminology the ought opposes the empirical nature of the is. While the empirical nature of is demands causes for its explanation, the ought and the metaphysical is the "highest reason in itself" (Baumgardt). Bentham favours a reasoned ought.
Censorial jurisprudence is supposed to inquire into legal institutions and compare them to an ideal of what the law ought to be, followed by suggesting improvements to the current law.
With the subject matter of a theory being law, the theory can again be both descriptive and normative; explaining how law is and how law ought to be or how law should be regarded as. Would it suffice to simply take expository jurisprudence as descriptive and censorial jurisprudence as normative?
Criticism of Bentham's demarcation
Now Bentham may have argued for a universal ought, which is the basis for his criticism but as Baumgardt points out "It is quite possible to insist that there are only positive laws whose ethical validity is not susceptible of proof, and that only such laws can be called "valid". But even then it would still be necessary to distinguish like Bentham between the functions of the Expositor and the Censor, i.e. to distinguish between the conservative interpretation of actual laws and the critical analysis of their moral validity."
Baumgardt goes on to lay down how this apparent flaw in Bentham's mind-set can be ignored by taking into consideration the hypothetical where morally valid laws are identified along with actually existing laws, it implies "a conscious theoretical distinction between sheer actuality and the moral validity of this actuality". This criticism only tends to arise from the naturalist side of the legal theory.
Differentiating between the orthodox demarcation and Bentham's demarcation for the sake of the fundamental norm
Bentham characterises the job of an expositor to include historical aspects, the developments of law and explaining how the law currently is, according to Constantinescu. The third aspect is of significance, as according to Bentham, explaining law does not just mean listing down all the facts of what law is but also arranging them in a specific order for the audience to comprehend. Bentham takes "arrangement" to mean "to distribute the several real or supposed institutions into different masses, for the purpose of a general survey; to determine the order in which those masses shall be brought to view; and to find for each of them a name" as quoted by Constantinescu (2009). This introduction of an order is taken to be a normative aspect, entailing that expository jurisprudence is more than just a descriptive science. The task of merely listing the facts requires the principle of selection, and hence is again normative.
To put it simply, the descriptive is not equal to the expository is. The descriptive is excludes anything which has any form of evaluation. The expository is is considerably less strict, restricting only those concepts which have moral valuation leading up to an ideal. Husserl's concept of the fundamental norm can also be applied to expository and censorial aspects. Since it is possible to say that expository sciences are not only descriptive but also partially normative in nature, it is safe to say that an expository fundamental norm can lead another expository science along with a censorial science.
Applying Bentham's demarcation
Bentham's emphasis on the is and the ought of an ethical science can be used to define the direction of its progress. The question arises whether the same rules along with which the descriptive normative demarcations follow can be applied to the expository censorial demarcation, specifically the fundamental norm based on Husserl's writings. In my opinion, Marxist, or rather the Marxian theories of law are best suited for the application of this demarcation due to their nature of finding common ground in classical Marxism from which the offshoots move in different directions.III
Marxism is not a legal theory. Law is mentioned in the works of Marx and Engels, but Marxism itself is a socio-economic theory and it is these aspects which I shall refer to as Classical Marxism even though usually Classical Marxism includes all the works of Marx and Engels. The reasons from separating the mentions of law from the socio-economic theory are twofold. First, for the sake of comprehension and conceptualisation since it is easier to write of the two as distinct because this is how Marxism is usually portrayed as, with the socio-economic theory as 'actual' Marxism. The second reason, I will bring to the reader's attention later on.
So for our definition, Classical Marxism can be divided into the following heads.
Marx center's his ideology around a "materialist concept of history" by looking at what causes changes and developments in society, or more specifically how humans cooperatively produce the necessities of life. For the human race to keep on existing on this planet, they need to keep on producing these material requirements and necessities of life.
To carry out this production of these necessities and requirements, which is dependant on exchange of materials; humans need to take part into social relations which are independent of their will, which are manifested as "relations of production". This cooperation between humans leads to division of labour, to the extent that some people live off the work of others, earning by not doing any work but rather by simply owning the means of production or rather the productive forces. The production relations are dependent on the productive forces. The type of productive forces will lead to the kind of production relations. The social stage of feudalism centered on land being the basic production force, which segregated social relations into land owners and serfs. Ancient society was based on slavery leading to slave owners and slaves. Together, the productive relations and the means of productions form the economic "base" of society.
On top of this economic base rests the superstructure consisting of political institutions, laws, customs, morality, ideas and the direction of thought. The superstructure is both political and ideological in nature. This complexity of the superstructure not only finds its origin in the economic base but also has all its features being dependant on the economic base. Changes in the base lead to changes in the superstructure.
A shift from one social stage to another on the surface is the dominant class being overthrown by the emerging class, by displacing the "political shell". The displacement of the political shell is simply making sure that the relations of production no longer correspond with the production forces. This liberation of productive forces with new productive relations by the underclass takes place in the superstructure. It is, in simple terms, a revolution.
The other strand of Marxism is dialectical materialism. While each social stage moves towards maximum economic efficiency, there is an antagonistic increase in contradictions and weaknesses of the social order internally because of which it systemically decays. G.W.F. Hegel took dialectics to be idealistic in nature, aiming to explain human history by seeking the truth, history itself being transcendent and based on a three-stage process of abstract, negative and concrete, rephrased into thesis, antithesis and synthesis. The thesis gives rise to the antithesis which tries to negate the thesis. The thesis and antithesis resolve their antagonism towards each other through a synthesis. Marx moved away from this, basing his dialectic materialism to be dependent on the material class struggle. According to Marx, Hegel held the thinking of a human mind to be the basis of the real world while he held the material world was translated into human thought. It is the best example of Marx favouring materialism over idealism in his philosophy, holding matter to precede thought.
Engels understood dialectics to be the science of change. He departed from Hegelian dialectics by dividing the concept of dialectics into a three stage process: (1) everything is dependent on an opposite; (2) gradual change leads to a turning point, an increase in the rate of change; and (3) change moves in spirals, not circles, i.e. the change is either positive or negative in nature.
Criticism of Capitalism
Penner and Melissaris (2012) take the criticism of capitalism by Marx to be equivalent to a moral valuation. Morality is considered to be part of the pre-Marx idealistic German philosophy, along with considering human nature to be universal and timeless. Still this critique is in a way a view of human nature. Marx took humans to be productive beings which reproduce their own conditions of existence by interacting with the environment. The only possible way to achieve this cooperation with others, the "relations of interdependence" as Penner and Melissaris refer to them. Capitalism is based on separating the environment and the product of their labour from the proletariat and places it into the hands of the bourgeoisie. This is what Marx calls "alienation"; alienating the product of his labour from the worker, alienating the worker from his work giving it the form of a commodity and hence placing it under the control of the employer, and it alienates human beings from each other as they cease to view each other as agents of cooperation. Marx believed that in a capitalist society, the bourgeoisie proclaimed that they share the same interests as the proletariat. A growth in productive capital will lead to an increase in wealth for the bourgeoisie and employment for the proletariat. This allows the bourgeoisie to control the proletariat work force i.e. the means of production. Depriving the proletariat of the surplus value of their labour is the exploitation that takes place under the veil of capitalism. While in social stages before capitalism arose to prominence, exploitation of the said labour took place through coercion, the bourgeoisie use comparatively subtle. The worker has the illusion of free will, that he has a choice as to who to work for. Actual free will would entail the worker having an option to either work or not work. This option is not present to the worker. His only options are to either work or starve.
Placing classical Marxism in the demarcation
According to Benthamite reasoning, historical materialism fits perfectly on the side of the expository. As for dialectical materialism, only the issue of change moving in a spiral is of contention. In my opinion, Engels does not specify the direction in which the spiral moves in, only noting that it will move in a spiral, allowing us to form the conclusion that that he stayed away from valuation and retained a descriptive nature and hence expository. The third of critique of capitalism is what is of significance because under the normal demarcation it would have been taken to be normative in nature since criticism entails valuation. Taking it from a different perspective, Marx can be said to be using an internal point of view of the proletariat rather than an external point of view. Hart seems to have been forgiven for having used an internal point of view and referring to it as descriptive. I believe Marx's critique of capitalism can be taken to be expository in nature.IV
Marx intended to cover "state, foreign trade, world market", as quoted by Maureen Cain(1974) from the Preface to the Critique of Political Economy, but was unable to, due to his untimely demise. Marx and Engels do mention laws as part of the superstructure, hence dependant on the economic base and depriving it of any central role in their theory. They do specify laws as one of the major instruments through which the bourgeoisie control the means of production. The reason for separating Marx and Engels writings on law from their general writings is based on the conception that Marxism is not a legal theory. A legal theory is derived from it based on what the authors have said in their general work. As we shall see below, law can be taken to be filling the blanks in their general theory.
Many have tried to compile and derive mentions and applicability of law after them. Over here I have used the compilation of Maureen Cain in The Main Themes of Marx' and Engels' Sociology of Law, published in the British Journal of Law and Society in 1974, the chapter on social theory and Marxism in J. W. Harris' 2nd edition of Legal Philosophies, and the chapter on Marxism in McCoubrey & White's Textbook on Jurisprudence, the 5th edition by J. E. Penner and E. Melissaris. Cain mentions that before her paper was published, there is a distinct emphasis on Marxist legal thought to be comprehended under two headings; through criminology, a point of view held by sociologists insignificant over here due to the subject matter being crime and not law; and the "worker bashing" interpretation. Also known as the "putting down the workers" model, the later approach was held by lawyers and jurists. Cain argues that the interpretation of Marxist legal theory by jurists (she mentions the example of Dennis Lloyld) highlighted coercive nature of law, with its function being to make the proletariat obey the bourgeoisie. She says that this, though correct, is an oversimplification since it does not take into account laws which do not follow this set model. She goes on to divide the legal aspects derived from their aspects into themes. I have taken the liberty of amalgamating the themes she presents with the themes presented by Harris and Penner and Melissaris.
Ideology and the State
Ideology is put forward by Marx and Engels as what humans construct and understand their surroundings to be, based on dialectical materialism. This is probably why Marx and Engels refrained from defining law, their based on the common sense view of what law is. This concept of ideology is what M. Cain believes to be central to Marx and Engels view on law, as she states "Law as it exists in "massy" reality is an objectified ideological form." (Cain, 1974).
Looking at historical materialism, each form of society or social stage has economic relations at the base of it. Taking Capitalist society as an example, it is characterised by private property. M. Cain explains this use of the terminology of private property as follows:
"This mode of thought [i.e. private property] is embodied in a peculiarly comprehensive set of legal rights in relation to the use and disposition of real, or fictitious but legally and socially existing, things. Capital is private property which enables the owner to buy the labour power of another individual, and use it to create surplus value. Workers, to the extent that they do not receive the full value of the labour power they expend, are exploited." (Cain, 1974)
This prominence of private property is explained by Marx and Engels in a warning, as quoted by Cain:
"The proletariat and wealth are opposites; as such they form a single whole. They are both forms of the world of private property. The question is what place each occupies in the antithesis. It is not sufficient to declare them two sides of a single whole." (K. Marx and F. Engels, The Holy Family, 1957 Lawrence and Wishart, London)
It is to maintain their dominance that the bourgeoisie as a class forms a structure of organisations closely linked which is referred to as the State. The two purposes for creating this set of organisation for the bourgeoisie, i.e. the functions of the State, are to protect the common interests of their class and to protect the bourgeoisie from external threats from the proletariat, other classes and other States. M. Cain uses the following quotation by Engels to solidify this argument:
"The modem state ... is only the organisation which bourgeois society provides for itself in order to support the general external conditions of the capitalist mode of production against encroachments of the workers as well as of individual capitalists..." (Engels, Anti-Durhing op. cit, Vol. 2, p. 290)
The State is not a legal or metaphysical entity for Marx and Engels since it consists of people, who move in the direction pointed by the bourgeoisie. The State is dependent on the economic base of modes and relations of production, but the State on its own is not sufficient for the ruling class to stay dominant. The ruling class needs to give an expression to their will as the will of the State. This is the closest that Marx and Engels come to describing law, as a universal will of the State and the ruling class.
From here the State gains a certain amount of independence from material conditions. Officials of the State, holding public power, representing the society, stand above society itself. This also because in the conflict between classes, the State has to play the role of the mediator. The bourgeoisie start using their power indirectly in these conditions, but this does not mean they stop holding influence over the State itself. Along with the independence of the State, law on its own, along with religion and philosophy gains a certain independence from material conditions and the State. This is due to having granted them some form of institutional status which allows them to develop their 'inner logic'. This eventual independence of the State is based on the development of ideology. Engels argues that this does not mean that become completely independent of material conditions, since the people involved in the development of ideology are oblivious to the material conditions that affect them.
According to Harris, ideology is the "interpretive tool by which a social theorist can explain the filtering of power and the demarcation of rules in society without pointing to mechanistic casual connections such as belief-sets of social actors". "Marxist economism" (Harris, 1997), is the method the dominant class uses to maintain its position is to pass off its own ideology as those of it oppresses. Law is an important part of this ideology since it is in the interest of the oppressors that the so called 'free' bargains, property ownership, civil wrongdoing and crime considered to be permanent features of social interaction. To preserve this hegemony, law appears to be objective with some parts conflicting with the interests of the capitalists which are nothing more than minor sacrifices on part of the ruling class. Even after a Marxist-significant change some laws appear to be the same as before, which can be considered to be proof that Marx and Engels did not believe every detail to have an economic explanation.
How material conditions are understood by the ruling class will be how material conditions will be conceptualised for the rest. Before they are conceived and understood though, material conditions need to exist first; dialectical materialism. Where the thought process goes from there is not necessarily dependant on material conditions alone, legal ideology can play a part as quoted by Cain:
"Since in each particular case the economic facts must assume the form of juristic motives in order to receive legal sanction, and since in so doing, consideration of course has to be given to the whole legal system already in operation, the juristic form is, in consequence, made everything and the economic context nothing ...." (Engels, Fuerbach, op. cit., p.619)
It is uncertain as to how much emphasis Marx and Engels would hold for law in the relations of production. For reference we can look at historical forms of legislation, and come to possible conclusion as to how law was supposed to fit into its role in this theory. Since each legislative event cannot be motivated by the interests of the ruling class, law does not hold any centrality in this theory of relations of production. Since law is a part of the superstructure which is dependent on the economic base for its characteristics because of class structure, class interests will eventually make void any law that goes against the interests of the bourgeoisie.
Penner (2012) refers to the arguments presented by Marx and Engels on the State and ideology as descriptive. This is possibly because the normative aspects present Marx and Engels definition of the State and ideology are rudimentary. Choosing private property as the economic base to the Capitalist structure hardly seems arbitrary. The process of selecting the economic base, no matter how accurate eventually involves the normative action of choosing something over the other. The fact that the terminology can be used for actual property and the labour-power value is slightly confusing. The actions of the ruling class are not fixed. In saying what Marx and Engels expect the ruling class to do, they take the same route as Hart even if it is not an internal point of view of the legal phenomenon: they set an ideal situation rather an actual situation. The concept of ideology is presented by Marx and Engels is a set of their own assumptions, and hence descriptive. Ideology is presented by Marx and Engels as how humans understand their surroundings. It would not be farfetched to put it in the same category as conception. Similar arguments as to Hart's conceptual analysis will apply. Normative elements are present in the theory itself and also in how Marx and Engels reached the theory. Hart's defence of metatheoretical is not applicable over here.
However, having taken law as the subject matter, and applying Bentham's rules of demarcation all of the above stated arguments for the State and ideology fall into the bracket of expository jurisprudence. Unless and until Marx and Engels start talking about a society that will occur post-revolution, they maintain their ground as expositors.
It is questionable whether the economic base can be separated from the superstructure completely though. While some argue that yes, it is possible, if we think of the whole structure to be based on power relations from which all normative terms must be excluded, other argue the exclusion of norm-free terms means the extinguishing of all roles so it would be pointless. Hugh Collins argues that even if the economic base is derived without any input from law, the terminology forces us to "explain the mechanism through which the base would have to translate itself into customary and legal norms". Using the distinction of expository and censorial though, the base can be completely separated from the superstructure. All that is required is to remove all censorial aspects, which technically would include all normative aspects which are not directly linked with descriptive aspects, pertaining to explaining what the law is.
Functions of the law
Three functions of the law are highlighted by Cain which were put forward by Marx and Engels. The overall objective of the law and the State is maintaining order while the conflict of classes takes place. This objective is achieved by fulfilling these three functions.
The ability to (1) obscuring real power relationships is from where Cain starts. This takes place by giving legal forms of power, such as the right to vote and to enter into contracts, equally to all. Engels refers to it as equal footing on paper. The law on the face of it does not concern itself with classes, their struggle, or the economic basis through which this class difference arises. Yet the economic basis is what forces a worker to forgo his rights, and the law cannot interfere with this. Marx makes the analogy of rights being recognised to hold the same value as slavery being recognised.
The second function is (2) legitimising the use of real power. It involves, first, explaining the State and second, a further ideology explaining the use of the power of the State in certain situations. The latter is what the legal community refers to as jurisprudence.
The final function is (3) representing the "average interests" of the ruling class, not of particular individuals or sections but the whole of the of capitalist bourgeoisie class.
"Their (the capitalists) personal rule must at the same time be constituted as an average rule. Their personal power is based on conditions of life which as they develop are common to many individuals, and the continuance of which they, as ruling individuals, have to maintain against others and, at the same time, maintain that they hold good for all. The expression of this will, which is determined by their common interests, is law." (Marx and Engels, The German Ideology, op. cit.)
Law helps keeping conflict in the ruling class to a minimal, in the interests of the whole class, uniting them to an extent and providing them with some form of social integrity.
As with Hart, choosing one function over the other is a normative exercise. Though it can be taken to be descriptive, since what is in question are the actual functions of law, and not necessarily the proper functions. This is obvious because of the blunt nature with which Marx and Engels explain these functions as to having negative implications to the proletariat. The criteria for expository jurisprudence is fulfilled either way.
Law and social change
The influence of law on social change is dependant first of all on private property. Law elaborates on the difference between ownership of property and possession of property. The emphasis is on property as a social concept, for the individual needs to be a member to own or possess. It concerns the "appropriation of tools for personal use" (Cain). The concept is in already in the human mind, but it is the change in material conditions and the necessity of appropriation of more tools that it arises. The issue is not of a civil nature though. For something to be stolen it must be owned first, meaning criminal law has its roots in the concept of property. For private property to be appropriated there must exist an actual real relationship with material conditions is necessary. This dialectical relationship is explained by Cain:
"The legal conception shapes the external reality, develops with it, and is developed by change within the new external world thus created. The hoary old question, which comes first, the law or social change, push or pull, chicken or egg, cannot exist for Marx. The conception becomes the material world as the material world gives rise to the conception." (Cain, 1974)
The relationship between social change and legal change is highlighted since Marx and Engels are of the opinion that the legal form cannot stop change induced by the economic base. Say harsh economic conditions demand equality. No matter how hard the political and legal structure try to oppose this transition, eventually it will take place. Marx, in Capital, Vol. 2 gave the example of the bourgeoisie revolution, which had to face the limitation of 2000 sheep per owner, but was not deterred. Though not his central purpose, Marx demonstrated the necessity of legal power to be backed by real economic power.
The question is whether legal power can be used in favour of the proletarians. Marx suggests the classic divide-and-conquer strategy; exploiting the differences in the bourgeoisie and forming alliances with those who would rather work for their particular sectional aim. Pressure groups are a sufficient threat, which can at least to a concession in favour of the proletariat.
The question of whether law can bring about social reform is answered bluntly. Both Marx and Engels were of the opinion that legal reform, piecemeal or not, was useless since the criteria for reform is dependant on existing relations of production, which are subject to change. It can be interpreted that this is due to the negative connotation of legal form, i.e. sanctions which Marx feels leads humans away from freedom and further into alienation.
The emphasis on how the human mind comprehends private property and capital takes us back to the concept of conception and ideology. This aspect will firmly rest under expository jurisprudence. The dialectic nature of social change though is questionable though. Measuring change could cross over into both normative. Transition from A to B encourages comparison between A and B. This applies only in last part of whether the law can be used to bring about social reform. In my opinion though, since Marx and Engels refrain from going into which came first, i.e. law or social change, it means limiting themselves to explaining the current situation with practical implications. The explanation grants it expository status. The rest is nothing more than a dialectic, which though normative, caters to the criteria of expository jurisprudence.
Criticism of Capitalism
Harris (1997) adds another dimension to the legal theory based the evaluative ethical commentary of Marx. Even though Marx considered his theory to belong to an objective school of thought, ethical commentary was present. His criticism of capitalism is the highlight of this ethical commentary.
Taking legal aspects into consideration only, his works highlighted service contracts taking them to be equivalent to a conveyance because the purchaser is free and allowed to make use of the seller's physical and mental capabilities as he would do with any land or property (in the physical sense) he purchased.
It is through law that a seller in this contract is reduced to subsistence, in hopes of achieving maximisation of profits. This does lead to increase in human wealth initially but the later stages of capitalism hinder an even further increase in output. Historically speaking, oppression through law is a better option rather than through naked force.
It is argued that the ideal of rule of law needs to perpetually be exposed as a farce and an ideological smokescreen through defiance for the workers to achieve consciousness and know where their interests actually lie.
Now criticism, as it suggests, is not just evaluation but also comparison, since it only when you come up with alternative to the current descriptive can you criticise it. But referring specifically to their writings to the criticism of capitalism, Marx and Engels, rather than taking a moral and evaluative standpoint (except in their tone), describe and explain the workings of the Capitalist model. The functional aspect of law is highlighted, along with its conceptual aspects. Legal aspects derived from this can be encompassed by expository jurisprudence.
While Hegel looked at historical development in terms of ideas, Marx and Engels emphasised that historical forces operated on a material dialectic, which will lead to a revolutionary synthesis. The bourgeoisie had overthrown the feudal system through a revolution and eventually the proletariat will overthrow the bourgeoisie. This will occur simply because the forces of production brought on by capitalism could no longer be under control by the bourgeoisie dominance. The proletariat will seize the means of production leading to them becoming the ruling class followed by the abolishment of all classes. In terms of law, Engels words were that the state would "wither away".
This is where actual comparison between Capitalist society and a Socialist society occur. The "withering away" of the state is, in my opinion inconclusive data from a standpoint of jurisprudence. The dialectic used by Marx and Engels is based on Hegelian dialectics. A thesis negated by an antithesis, which leads to a synthesis. Marx' and Engels' dialectic materialism though takes it further, turning it the other way around with the material world leading to the ideology, and adding that change is not circular but rather a spiral. As mentioned before I believe that that even dialectic materialism can be taken to be as expository. The process of change is being explained. Had they specified the direction in which the spiral moves, upwards (progress) or downwards (regress), they would have entered censorial territory. An explanation of what will lead up to the "withering away" of law has been given, but what "withering away" actually entails is inconclusive.V
Due to numerous writers having taken the Marxist and Marxian tradition forward, Marxism has become an umbrella term. It is because of this that we can simply classify the above laid out legal theory as the only Marxist legal theory. It is also for this reason that I have used the umbrella of Marxism for the application of Bentham's demarcation. For the sake of identification, Marxist works which are not by Marx or Engels will be referred to in this dissertation as Marxian rather than Marxist.
Pashukanis and Soviet Marxism
Pashukanis derived his own "Commodity Exchange Theory of Law" in his principal work; General Legal Theory and Marxism. A fine line can be drawn through separating his legal theory into two. His overall theory is based on two principles; (i) the law and the state are part of the superstructure which is dependent upon the economic base for its characteristics, and that (ii) after the revolution when the socialist economy comes into being, law and the state will "wither away" (Fuller, 1949).
(i) With all goods, including labour being viewed as "commodities", the basic institution of capitalism is taken to be exchange. Bourgeois law, being part of the superstructure, finds its roots in the concept of exchanging, trading and bartering. Historical basis for this is given to be buying off a blood feud in criminal law. While most legal theories concentrate on the "authoritative ordering of social relations", in the words of Fuller (1949), this is not "its real essence" since an ideal authoritative ordering would be military commands, which are followed without question, this phenomena not being legal in nature, but rather the opposite of legal.
Law takes its place in the overall social structure not just when there is presence of a political superior and a political inferior, but also humans face each other with rights and duties. Taking the possessor of rights and duties as the legal subject, who is "merely the economic trader seen in his juristic aspect" (Fuller, 1949), we can come to the conclusion that if we were to take the power of the legal subject to end disputes through some sort of exchange or trade, he will cease being the legal subject. Hence it is the ability to trade which allows anyone into legal relations. Exchange is taken for granted in the concept of legal right, on which the whole legal order depends, the reason for this being "decadent capitalism" (Fuller, 1949). In the early years of capitalism rights were prioritised over law. Retribution under criminal law is nothing more than the price (punishment) for each crime committed. Pashukanis also defines the legal form. Any commodity which is to be sold in the market needs to have a value form, unless being used in subsistence. For that value form to be validated there exists the legal form.
It is only indirectly that law ends up in the hands of the ruling class as an instrument to ensure dominance over the proletariat. Reiterating law as method of dominance does not help us comprehend its nature. The domination of the ruling class can exist without law, through religion or military authority. The legal aspect of the exploitation of the proletariat by the bourgeois is the notion that the worker is free to decide his legal relations with his employer through contract, an exploitation dependant on exchange.
Besides law, morality is also dependant on the concept of exchange.
"Morality has to do with conflicts of interests between individuals who are conceived to have it within their power to determine what they shall do or not do toward one another. Such individuals are simply economic traders seen in the light of ethics." (Fuller, 1949)
Morality is minimum standard of conduct to make the sure the status quo of reciprocity remains perpetual.
This aspect of Pashukanis' theory is expository, derived from the expository classical Marxist theory of class struggle, historical materialism, dialectics and the criticism of capitalism, along with the concept of the ideology, state and law present in the works of Marx and Engels. It is straightforward and descriptive in nature, not providing us with a challenge in placing it.
(ii) Pashukanis considers bourgeois law to be actual law, with pre-capitalist notions of law, which were dependant on religion or military authority, more likely to be the first steps in the direction of bourgeois law. The ideal law can only be recognised when an ideal market is present, which would be under capitalist conditions. And this bourgeois law, along with the morality, both dependants on the concept of exchange, will cease to exist when the concept of exchange ceases to exist. The superstructure consisting of the law, the state and morality will no longer exist since man no longer thinks of his own interests to be different than the interest of his fellow humans, having become a "group-creature". The example of a pregnant mother should suffice here, since she and the child in her womb share interests of food and water. Justice, remuneration, "demanding measure for a measure" (Fuller, 1949) will no longer apply.
The Soviets still had significant elements of exchange in their system, such as private trading, the interaction of government corporations with each other, the compensation of workers for the work they do, going against Pashukanis and the Soviet ideology. This aspect of his legal theory is derived from the later fundamental principle of "wither(ing) away". Along with other Soviet writers Pashukanis does not take into account the weakness of the withering away argument, i.e. its inability to explain why positive aspects of law which emerge in a capitalist society are of no use in a socialist society, according to Sypnowich (1987). This includes the emphasis of law as an instrument of endorsing an ideology. The Soviet writers stuck the withering away argument while the Soviet state maintained a sense of socialist legality, the use of law which they justified as to be near extinction as they reached the final stages of Communism. Khrushchev resurrected the term "socialist legality" while Stuchka argued that the proletarian class state needs the "coercive support of law, an element of constraint and persuasion in the transition period which is of a "frankly class nature"" (Sypnowich, 1987). It is censorial in nature, using the mature communist society as an ideal, and comparing current conditions with it, listing down the advantages of the ideal system, with law, the legal form and the state as the subject matter. The Soviets themselves claimed that mature Communism had not been reached so the argument that the Soviet writers were not working towards an ideal is baseless.
Althusser and Western Marxism
Althusser retains the Marxist principle of class struggle. But instead of simply taking the word of Marx and Engels as it is, Althusser dwells into their writings, in my opinion trying to fill in the holes, though many refer to it as the rereading of Marx. Rather than dividing the base and the superstructure into "isolated instances", Althusser looks towards finding the differentiation, the complexity or rather the combination of specifically the law and the economy which will define the base and the superstructure, the economy and the law. Having taken into account the objects of production separately from the instruments of production, and having divided the agents of production into those directly involved with production and those which only own and control the means of production, Althusser claims the base and the superstructure, the society, can be described as different combinations of these factors, which are both economic and legal at the same time. Althusser makes law more prominent than Marx, saying that it is essential to the structure of the economy.
Using the state as the embodiment of law, he divides the state into repressive state apparatus and ideological state apparatus. The repressive state apparatus is not necessarily physically repressive in nature; it is rather simply not an ideological state apparatus. The ideological state apparatus is the law, central to the perpetual nature of ideology. Rather than simply a layer separating the real from the unreal for the subject, the subject connects to the real world through ideology, or rather the mechanism through which the subject enters a specific material reality. Humans come into existence because of their relation to the means of production, the personal ideology, their sense of self dependant on the role they play in the economy. Law is a major aspect to the creation of this personal ideology
Althusser's works are expository in nature. The issue of contention can be which part of the Classical Marxist theory does Althusser adhere to, since he considers his work to be a rereading of Marx's Capital. Historical and dialectical materialism are both present along with the Capitalist critique. When it comes to the place of law in the superstructure though, he deviates. Rather than having more of an ideological function like Marx and Engels' theory, Althusser claims law to play a bigger role in understanding the base structure. Understanding addition of 'structuralism' to Marxist theory is the key to understanding his theory.
Here I would like to give the second reason as to separating the general theory of Marx and Engels from the legal theory, since Althusser only limits himself to the general works and comes up with his own legal theory. His work, which is obviously expository in nature, is derived from the general theory of Marx and Engels, what I specifically referred to as Classical Marxism. It is the fundamental norm to Althusser's expository work. Until now, all three legal theories taken into consideration have had the said Classical Marxism as the fundamental norm. Does it suffice to say that Classical Marxism alone is the fundamental norm to all Marxian legal theories?
There has been a recent movement of adapting the Marxist mode of thought to understand and comprehend the workings of the global economy. One of the works which has had the most influence in recent times is Antonio Negri' and Michael Hardt's Empire.
The 'Empire' is defined as a new form of global sovereignty, where under a single logic rule supranational and intergovernmentalist organisms are brought together. The 'multitude' is at the centre of this empire, bringing together post-modernism with Marxism. As Vaughn (2002) lays out, it was the apparent failings of Marxism which led to the post-industrial theory, moving from a dependence on the modes of production to information. Having found their roots in autonomist Marxism, Negri and Hardt consider labour to be autonomous from capital. The bourgeois tradition does not simply apply on a global scale, even though at this global scale there are class denominations. Vaughn puts forth Negri's aim in a single question: "what are the possibilities of a sociality of constitutive power that no longer produces constitutions separate from itself but is itself a constitution?" Negri in turn insists on a link between knowledge and productive forces. What the ruling class control are not the modes of production anymore, but the networks of information.
What Negri uses as a base of his expository work is not all of classical Marxism but certain aspects of it, specifically speaking the anti-Capitalist sentiment upon which Marxism is based on. Rather than the base of the socialist conscience as a dialectical interaction, they believe it be the result of socialist propaganda. It is even questionable if Empire would fit the criteria of Bentham's expository ethics since unlike the Communist Manifesto and the Capital, Empire provides the reader with barely any empirical data. The only censorial aspect of Negri' and Hardt's work would have to be their argument that resisting the Empire is futile and the only option for those who are opposing globalisation is to speed up the process. This is why it is referred to as an 'imaginary resistance'.
Taking the non-censorial aspects of Negri and Hardt's work specifically, it seems that no specific legal theory is present. What is of interest to me is the clash of Marxism and post-modernism that is taking place. This clash of ideologies, which has now come to be referred to as post-Marxism, is based on replacing the labour and modes of production with sole concept of information. What is there to say that law, taken as the written word, is not information? Kelsen refers to a legal norm as ""The same rules presented in the Empire as to how the information flows through the networks can observed with law as the subject matter, i.e. the information. Negri defined the Empire in an interview with Guerra as follows:
"Empire derives from the monopoly of power in three main fields: the monopoly on the definitive weapon, which is the nuclear arsenal; the monopoly on currency, consisting of the capacity to set the value of money at the level most favorable to Empire as the fundamental value for all others; and the monopoly on language and communication, on information and on espionage, those great systems, those big ears that listen to the world."
Communication of information as law on the global scale can fit into Negri's thesis. It could be argued that the Empire has led to the fall of nationalism and the concept of states, but states do exist. Even it is delegated information as law, the apparatus of individual states still exist and will keep on existing at least in the near future. So we see that the only the negativity and the critical nature towards law and Capitalism generally exits.VI
The descriptive normative binary present us with the concept of the fundamental descriptive norm, which I believe is also applicable to Bentham's demarcation. The difference between the two binaries is obvious, with the orthodox binary being more idealistic and less applicable to social sciences. On the other hand, Bentham's binary provides social sciences with more leeway due to having been formulated to accommodate law, the principle of utility and social sciences in general. I have chosen to carry forward Bentham's demarcation using the rules which have already been implemented on the orthodox demarcation, specifically speaking the concept of the fundamental norm.
The movement of thought from a fundamental expository science to 'derived expository sciences' and 'censorial norms' is looked upon though the development of Marxism and Marxian theories of law. Classical Marxism provides us with an apt fundamental expository norm in the beginning. Marx' and Engels' writings on law use their own rules which constitute as classical Marxism as the fundamental norm. Pashukanis, in his Commodity Theory of Law uses the fundamental norm of classical Marxism as a basis, and adheres to the specific concepts of state, law and ideology by Marx and Engels. He describes the basis of law as exchange, remaining on the expository side of the coin. It is only when he comes to the withering away of law does he move into censorial territory. The expository aspects adhere to not only Classical Marxism but also to what Marx and Engels have said about law. The censorial aspect is also based on the fundamental norm of Classical Marxism along with what Marx and Engels have said on law.
Althusser's work is defined as a rereading of Marx, but he looks at the superstructure-base model through a new perspective. His work is said to be a highlight of 'structuralism', which is an addition to classical Marxist theory on his part. But that is all that he uses as a base to his theory from Marxism as he ignores what Marx and Engels specified on law. Althusser's work provides us with the concept and reasoning for separating Classical Marxism from what Marx and Engels specifically said about law. So is Classical Marxism sufficient as a fundamental norm in to all Marxian theories of law?
This is why an addition to the equation was made, an addition of Antonio Negri' and Michael Hardt's amalgamation of post-Marxism and post-modernism in Empire. Empire today can be conceived to be on the furthest corner of Marxism. Add to the fact that law is barely given any attention in this work of which puts the world on a pedestal and it becomes more doubtful why this theory was even entertained in this dissertation. It is easy to discount something based simply on what it reiterates, but in my opinion considerations need to be made as to what a theory implies. Negri' and Hardt's work does imply information and networks as a centre piece. It might be a leap of faith to take law as information, but it is still a logical leap of faith. Taking this as a basis to our thesis, what is the defining characteristic
Article name: Philosophy Is Aptly Demarcateds Philosophy essay, research paper, dissertation