Law as a form of ideology
It is submitted that all the ideologies proposed to move towards ‘good society'. Ideology in essence, it is an element of myth, distortion, which imposes liberty, equality and fraternity, these slogan clearly set out in the Declaration of Rights of Man & Citizen (1789), as we sees the society as a whole picture, government or legislators in their effort to promote equality amongst the citizens, which inevitably compatible with the slogan of ideology. Marx adopted the view that Hegel had made a mistake in viewing the dialectic as one of ideas, instead ideas were the product of social life and such the dialectic of history was one of social conflict. Thus Marx's dialectic materialism sees history as conflict resulting in a synthesis. Ideas are the awareness of the social situation and as such a result of social conflict. Social conflict arises from economic differences, thus ideas including law, are predominantly expressions of the economic conflict in society.
In a communist context, to be able to achieve a ‘good society',3 dominant stage are necessary, i.e. immediate, intermediate and ultimate good. Immediate implies the overthrow of the bourgeois regime, whereas intermediate bring about the social and economic reconstruction, and finally come to a classless society, where a society that just, fair, no oppression, basically a peaceful society. Before go on detail with explanation, here's the simple introduction of the renowned philosopher, Karl Marx during his university time, was the hotbeds of intellectual and political activity, he then totally immersed. He was influenced deeply by G.W.F.Hegel, which drew both intense opposition and support; however, Marx theory goes further than Hegel.
Marx relates the form of law to the ‘material conditions of life' as opposed to ‘development of human mind'. He says every human being is creative and productive. In the process of productivity, we interact with ourselves, with other human, as well as with the nature. Every human condition is the condition of labor, productivity and creativity. The labor he referring to is the whole of life, the voluntary expression of human personality. Therefore it can be said that, labor equals to human fulfillment.However, in practice, human labor never based on voluntarily, indeed replaced with coercion. Historically potential creative person has been oppressed, human work is not spontaneous, in fact, it is dehumanizing man. Human creativity has led to human alienation, the division of the labor appeared to destroy human creativity and the product seems strange and foreign to us because it is not out from voluntary labor, it is a world of contract.
The alienation goes on further. People are just alienated from the society and nature in which they live, conventionally, human being should have interaction, unfortunately replaced with dehumanization and coercion cultural.
It has to be remind that it is the social determines mens' conscious,not the consciousness of men determine their being.In such a case, Marx is of the opinion that law is part of society whereas
‘Ideology forms where men realized the confliction of material life that existing between the social forces of production and their relation and thereby fight it .Marx is in his effort to emerge ideology and consciousness in general.
German Ideology,Young Hegelian stressed importance of ‘idea', it is the product of consciousness, which exists as an separate entity, it is to fight against the illusion of consciousness, as a spiritual and moral forces in human society whereby the human history introduces the existence of living human individuals, men is the creator of history, Their appearance of life, indirectly showing their actual material of life. They have to be economically active to continue his existence as other living things.
Marx in his Marxism sees society divided into substructure and superstructure. The substructure is the actual relations between people involved in production, the economic structure of society. The dominant class in a society is the class that is the exploiter or oppressor in this economic relationship. Superstructure represent firstly a reflection of these relationship in legal and political forms, secondly the dominant class view of the world and thirdly the development of awareness of social conflict, resulting in a critique of the above.
Law as a part of society as that which masks the exercise of power and that law is a medium of that power. In short, law aids in authority and embodies right. On the other hand, ideology reflects the economic foundation of society, according to Marx, it is an idea system that derivative and false, it is just a tool, for the masses to maintain and perpetuate itself, and to keep underclass in its place. Law represents a mirror of inequalities in society often obscured by the ruling classes presentation of it as impartial and detached. Thus, Marx speaks of the laws of contract. They seem as if there is an equality of bargaining power. However, the reality of relations of production is that the employer is more equal than the employee. The judge may believe that he is working with objective categories but them simply the product of the economic forces. Thus law is a false consciousness.
To understand the Marxism, it is necessary to understand the impact that Hegel been put forward to. What intrigues Marx about Hegel thought is, Hegelian dialectical-that history develops through the resolution of contradictions.
Marx asserts that his method was dialectical, is of materialist whereas Hegel's, idealist. The centre lies on their notion of contradiction. According to Hegel's dialectic, everything was opposing. It is submitted that opposition interest was harmonized by some sought of mediation .Marx argued that this failed to reflect antagonistic and claimed that Hegel's method merely conceptual sleight of hand. Beside these, Hegel sees the picture as one unit, all reconciled in the idea, Marx opposed this having said that it doesn't fit into reality.
Marx developed his thought based on critique of Hegel's ideas. A broad picture of human history and development, as well as the mechanisms that Hegel believed drove history in progressive directions. however, Marx rejected idealism and instead tried to locate social institution such as law within the materialist understanding of social and economic context, he believed that a phenomenon like law can be understood in its material of historical context he then introduced the notion of value, labor alone able to create value, if a man produced a good, he is creating a value of that product maybe overall expenses cost $10, eventually he has $10 in return for his effort. Gradually a situation of surplus value occurred. Adopted above example, if the expense on that particular product worth $10,yet the producer might earn up to $50,to pay for the intermediaries etc. Basically Marx grand scheme has undergo 4 stages of development; anciet tribal, slave society,feudal,socialist,and in the future, a move into communist society. It may be asked why there is no contradictory relationships during anciet tribal? simple idea is,there is no concept of private property therefore the means of production does not exist as well.
The remaining stages, are in dialectical in nature. According to Marx and Engel,
‘The history of all hitherto existing society is the history of class struggle'
Throughout the whole gradual change of society, Marx believes evolutionary. The dynamic of conflict are in the nature of classes inherently. When the slave society has yet reached the maximum spot of development and was transformed into feudal society and the feudal society has reached the height and was transformed into capitalist. Capitalist society is readily transformed into socialist society. Historically, it is revolutionary nonetheless the essential foundation of oppression and exploitation remained unbroken unless and until the forthcoming of the capitalist stage i.e. classless society.
It can be said that, capital can takes a juridical form that changes over time. It is a analysis of value form of the commodity.He confronted the issue in Grundrisse, the concept of political economy move from ‘abstract' to ‘concrete', the abstraction here move towards the capitalism. Marx realized the technical contradictions were the social contradiction which stemming from mass of workers whom suffered from oppression, inevitably the process of gaining control would be a emancipator act.
Marx's statement in The German ideology,has been thought too simplistic in his earlier conceptions, he thought of ideas as distorting reality. Controversially, in his later writing, particularly in Capital, he keen to stress the distinction between exceptional forms of capitalist society and essential relations of production. Follow the facts that he emphasized on capitalist society, the nature of inequality disappeared due to free exchange between the mutual relationships amongst them. In The German Ideology, he stated that, men are superior to their own perspective. these are produced by their productive forces and social intercourse, and it is proven that men existence are coexist with their actual life process.If we refers back to Marx's political economy thesis, untie the contradiction thesis on the understanding that capitalism negated human essence and so has to abolish if human essence was to be realized. Only then humanity prevails over control by system of production. Marx then insists on “man must prove the truth'', Marx theoretically in the effort on promoting the equality within the society but in the other hand, practically try to balance the tension between the reality and the power in hand.
Again, Marx commented that positive law is not an isolated phenomenon but one intimately related to a range of political, ethical, moral, social, and economic factors should be obvious enough. Marxism itself may, indeed be open to criticism for its exclusive emphasis upon the importance of economic factors but the emphasis upon the non autonomy of law is nonetheless important. It may be convenient in professional legal discourse to speak as if law operated in isolation from external influences but there is a severe danger of distortion in a professional habit of mind which forgets that this is convenient mental shorthand, rather than an accurate description. This element of Marxist jurisprudence may serve as a valuable reminder of what is sometimes a damaging weakness in conventional formal legal analysis.
As mentioned earlier, everyone is subject to their own creative and productivity ideally, nevertheless in practice, it never comes to reality. People are alienated from their own will, own labor, own product, in order to overcome such alienation, it can only through radical transformation of social conditions. In short, communist action where man are allowed to, rehumanize himself. They are trying to reunion with himself, doing so, it is to abolish the private property.
.However, no one can give an accurate definition of what does the word “ good society” means. Taking into account a wide picture as a whole, it may saying that the society with equality on labor, rights, powers etc. In the course of history, happened repeatedly to the theories of revolutionary thinkers and leaders of oppressed classes fighting for emancipation, they started to realized the need for a revolution. First of all, Friedrice Engel in his work, he adopted Hegel's idea, having said that the society that contradict with itself, causing irreconcilable antagonism that hardly to eliminate, some sought of power has to be stemming out from the society that stand above it to solute the conflict, it is the state.The bourgeois defined ‘state' as a mean of reconciliation of classes, on the other hand, Marx defined ‘state' as a creation of ‘order', that to legalize the oppression between classes by regulate the conflict.
Thus, question arises as to how does the state relate to the revolution? According to Engel, the appearance of the state mainly as a official representative of society, in a visible way no doubt. However these apply only to own represented class, for its own time, when the state represents the society as a whole, it become unnecessary, i.e. there is no subjection to upheld when there is no social classes, people struggling on what they needs rather than what they are being forced to. In these circumstances, government appeared to be superfluous. The government of persons therefore replaced by conduct of production. It can be say that,the state is withers away instead of ‘abolished'. In Engel's work, the proletariat revolution ‘abolish' bourgeois state only through the violent revolution whereby to abolish the proletariat is only through the process of withering away. To be capable of bringing about the revolution, the only means are through organization and leadership in communist party.
It then comes to my mind, whether is there still the need for a state? Engel in his letter to Bebel stated that the ‘community' substituted ‘state', however contrary, according to Marx, he asserted that even in communist society there is still need for state, he brushed aside the confusion in the Gotha Programme about the question of relationship between the state and society. He continues to say that the current society represents capitalist society, all based on modern bourgeois, shared the common features. What transformation will the state undergo in communist society?
Marx said that law is a tool of oppression. This is because, as an element of the social superstructure positive law is seen by some Marxists as nothing more than an instrument of class domination used by ruling class to maintain and advance an interest. It means that often of not the ruling parties or bourgeois using the law to oppress the working class namely the proletarian. This example can be clearly seen in the French revolution because Marx believe only by new revolution or economic crisis, everything will back to equal. He might be right when predict all the economic crisis nowadays especially the Lehman Brother and other bank financial crisis in USA. Going back history, he never predicts revolution will take place in Soviet Union or China, he merely believes in will happen in Germany and America. His only failure today is he predict people in America will stand out and do revolution again capitalist but he forget or wrongly count that the working society themselves wanted to become capitalist when a old capitalist fall. That why its not successful in USA and that was one of the reason why it failed in Soviet Union too.
It is not easy for a revolution to take place especially during the transition from capitalism to communism, where the capitalist society reserved for minority only, i.e. priority for those who are rich, proletariat being excluded and squeeze out from politics and from active participation in democracy as well as the division of labor which caused the separation of society is given unequal distribution in terms of both qualitative and quantitative of labor and its product. This definitely increases the desire of proletariat the need for revolution, the need to fight for their rights, basic human rights. Quoted from Engel's work :
“proletariat needs the state, not in the interest of freedom but in order to hold down its adversaries, and as soon as if become possible to speak of freedom the state as such ceases to exist”
In his Marxism world, he believe the world is heading toward a world where everyone will be equal where there will be a state that be no law, police, government to run a country. This is where he call communism. The word communist itself bring us meaning of community. Meaning everyone will have equal work, equal lifestyle and paid. Communism is very much relevant to Kelsen law theory of international because in international law, it will govern by one international grundnorm while communism world it will be a society that all being equal and just run by a simple piece of minimum rules. All theory like natural law and positivist also bringing the value of morality and the law must be fair and just. In Marxism, Marx is trying to create a “good society” that bringing fair n just.
In a communist society, people are accustomed to observe their freedom without coercion, not subordinate to anyone. However, during the transition period, it does not mean that suppression no longer in need. The trend has yet changed to suppression of exploiting minority by exploited majority. Present, people are freely and easily suppress the exploiters through simple organization of armed people such as soviet of workers, and soldier deputies. Appearance of communism, the state has become unnecessary to people, only then no special apparatus of suppression, more importantly no denial of excessive use on individual. However, to achieve this aim is not as easy as you might think, in Marx word : 1st phrase of communism,it does not serve justice and equality.
“with an equal performance of labor, conducted in equal share in social consumption fund, but not all people are alike, inequality still remained. To deter this, the right instead of being equal, would have to be unequal”
He continues, bourgeois law still in existence, but only partly. Bourgeois law recognized ‘means of production' as private property of individual, nonetheless it is common property for socialism. Start from the period of socialist society, the idea of equality started to cross people's mind, their principle in line with ‘equal work, equal effort, equal achievement'. During socialism, the need for a state still remained, in order to safeguard the common ownership of means of production, equality in labor, distribution of goods etc. In a socialist country, it is assertion that everyone should have a minimum level of material welfare, of which everyone has the fundamental human dignity and equal opportunity should have served and available to them.
When it comes to communist, people able to observe their ability to seek for their own needs, the fundamental rules of social intercourse, the state then will be wither away completely. It has to bear in mind that, state and freedom do not coexist. Again, as I mentioned earlier, equality has become the main idea that people pursuing for desperately, especially to oppressing classes, people with unequal distribution. For illustration, to achieve the equality of labor and pay, the idea of accounting and control are in use.
Towards a ‘good society', a move from feudalist, as well as capitalist, to a world of communist, it changed gradually. Quoted from what the socialism being imposed on, throughout the historical process, 'reason' become sole measurement of everything. The world, is in need of truth, reason and justice.
A good passage on French Revolution
‘……in this conception of law, therefore a constitution has now been established, henceforth everything must be based upon this…Anaxagoras first said, Nous, Reason rules the world, but now men realized that idea must rule the mental reality….'
Ideally, Marx speaks of egalitarianism, communalism, and communal ownership. All these are a forthcoming towards a realization of a classless society, where the ‘good society' upholds. Marx is of the proposition that equality should stand a major seat in society, where ‘workers of all countries unite.
Ideology, in fact as a mean which people live their relation to reality, it persuades people of their liberty, equality and humanity, which is the central norm of ideology. It has to be recognized that, every human beings, are unique in their own nature, own perspective, none of them subject to anybody, they are deserved to enjoy their privilege, therefore a ‘good society' procreating and undefeated. Social responsibility and ethics should have enhance in this way too. The law, ought to protect human's basic rights, privileges in order to maintain a good society that is peaceful and classless, just alike what the ideology served to achieve social solidarity and cohesion. The society as a whole, should have bind altogether, as one unit.
Political ideologies: a comparative approach,2nd edition by Mostafa Rejai 1995
Ideology second edition,David McLellan 1995,Open University Press Buckingham
Philosophy Guide Marx Justice and Dialectic,James Daly 1996,Greenwich Exchange
Marx's Grundrisse and Hegel's Logic
source: by Hiroshi Uchida,published by Routledge 1988, Preface, Chapter 1 and excerpts from following chapters.
Logic:Dialetic and Contradiction by Lawrence Wilde (1991)
Source:The Cambridge comparison to Marx,ed.Terrell Carver 1991
Thesis on Feuerbach by Karl Marx
- :[The Development of Utopian Socialism] http://www.marxists.org/archive/marx/works/1880/soc-utop/ch01.htm#3b
www.marxists.org/archive/marx/works/1880/soc-utop/index.htm st published: march, april and may issues of Revue Socialiste in 1880
Source: Marxism and Philosophy, Monthly Review Press, 1970, reproduced in its entirety;
Transcribed: by Andy Blunden for the Value_of_Knowledge archive, 1998;
Proofed and corrected: by Chris Clayton 2006.