Marx and the Law

Marx’s first serious engagement with the law and with rights came in a short pamphlet, On the Jewish Question. He wrote it in 1843, in response to a book published by a friend, Bruno Bauer. In that work, Bauer opposed Jewish demands for liberation on the grounds that no one in Germany was free and that Jews should fight for universal liberation. Bauer was, like Marx, the atheist son of Jewish parents, and he denounced their religion as “hypocrisy.”

Marx had met with a group of religious Jews who invited him to petition the provincial assembly in the Rhineland. Marx agreed with them and helped them. Equipped with that experience, his answer was the opposite of Bauer’s: the rights of oppressed minorities had to be won.

The pamphlet that followed is one of the most controversial of Marx’s writings. It reflects his Hegelian training and his mentor’s tendency to see life in terms of abstract categories, as if they and not people were the objects of history. The second half of Marx’s pamphlet speculates about the social function of Judaism in ways that reflect the antisemitic ideas that were pervasive at that time. Yet the first half of the pamphlet is unencumbered by those flaws and provides an argument unparalleled elsewhere in classical social theory.

Marx looked at the constitution adopted in France during the revolution of 1789, the rights to equality, liberty, security, and so on. He noted that

the so-called rights of man, the droits de l’homme as distinct from the droits du citoyen, are nothing but the rights of a member of civil society — i.e., the rights of egoistic man, of man separated from other men and from the community.

The demand for universal rights might have become a demand for a collective life, for “participation in the community, and specifically in the political community.” Instead, they had become rights to separate from the great mass of the people. “Liberty” had been shrunk down to the point where it was no more than “the right to do everything that harms no one else.” For Marx, this was a diminished and unsatisfying notion of human freedom:

The right of man to liberty is based not on the association of man with man, but on the separation of man from man. It is the right of this separation, the right of the restricted individual, withdrawn into himself. The practical application of man’s right to liberty is man’s right to private property.

Who was the holder of legal rights? In The Jewish Question, Marx derived his answer from the constitution of revolutionary France, which was (along with the American Constitution) one of the two great rights-documents of the eighteenth century. That legal citizen is an individual who counts their rights in isolation from the rest of society, someone who wants to be left alone, to make money. But how would they increase their wealth?

Fifteen years later, Marx looked back on his writings from this period and summarized their thesis as follows:

That neither legal relations nor political forms could be comprehended whether by themselves or on the basis of a so-called general development of the human mind, but that on the contrary they originate in the material conditions of life. . . . The anatomy of this civil society, however, has to be sought in political economy.

The critique of that latter subject would dominate the rest of Marx’s writing life.

Capitalist Legality

By the 1860s, and the publication of the first volume of Capital, Marx’s attention had moved from thinking about the individual removing themselves from society to focusing on the contract between the capitalist and the worker, arguing that it was here that capitalism’s inequality began. In the employment relationship, Marx argued, a capitalist pays the worker, and their relationship is one of apparent freedom, equality, and so on. However, inside the factory gate, the master is given a power over his servant — a power that the law will not challenge:

The capitalist, it is true, pays him in money, but this money is merely the transmuted form of the product of his labor. . . . The capitalist class is constantly giving to the laboring class order-notes, in the form of money, on a portion of the commodities produced by the latter and appropriated by the former.

In the contract between worker and capitalist, the real relationship between the parties is in every way at odds with perceived reality. Society treats the capitalist as the owner of property and assumes that they are the wealth creator. Yet it is the worker who provides their work to the capitalist and creates the value from which profits are made.

Workers are not slaves. A worker might own her own possessions, even her own home. And yet, however affluent any particular worker is, they do not own the means of production, and that is why they are obliged to work for someone else. Therefore, when they negotiate the terms of their contract with the employer, they do so as subordinates.

When the contract is made, the employer has greater resources. The employer has a supply of previous written agreements on which to draw, the owner’s or his company’s accumulated wealth. The need to eat and to pay for all the other costs of life compel the worker to accept the employer’s terms.

The law confronts this problem, it follows, with two recurring and incompatible assumptions. On the one hand, the capitalist is the owner of property. In any legal system from the French Revolution onward, property is given a protected status. Even such celebrated human rights instruments as the Universal Declaration of Human Rights, or the European Convention on Human Rights, defend the right to own property.

On the other hand, such areas of the law as employment law exist because, without them, employers would impose contracts whose terms would make the lives of workers unbearable. The law holds these two principles in constant balance: the rights of property and the need to redress capital’s bargaining advantage.

Between Equal Rights

In Capital, Marx writes of what he calls the law of exchanges. The worker demands “a working-day of normal length” and is compelled to do so by the logic of her position. They, “like every other seller, demand the value of [their] commodity.” The capitalist, subject no less to the logic of their interest, “tries to make the working day as long as possible.”

Conflict is structured into the contractual relationship between the parties:

A struggle between collective capital, i.e., the class of capitalists, and collective labor, i.e., the working class. . . . There is here, therefore, an antinomy, right against right, both equally bearing the seal of the law of exchanges.

It was in this context that Marx wrote, “Between equal rights force decides.”

In other words, across the great divisions of society (class, gender, and so on), social interests emerge whose demands are irreconcilable. They are locked together in a conflict that neither side possesses the strength to win outright. The state is a product of their antagonisms. It mediates between them by producing law and granting each side rights.

It follows that the function of the law is not to ensure that either side “loses” or “wins” on that terrain but to keep both in some degree of balance. The law settles these relationships in place, and punishes those on either side who stray beyond what the law permits. The law, in that sense, contributes to the making of those social relationships.

Should either side demand a more decisive victory, it cannot achieve it except by stepping outside the law. A social movement must protest in huge numbers, demand a legal change that would disturb the balance between the rival forces, or rise up in an insurrection that threatens to overturn the law. In the camp of the propertied, meanwhile, there are equivalent and opposite strategies: populism, fascism, and so on. To change the balance of the law, you must break away from it.

The Class-Struggle Right

Marx was arguing for a conception of the law in which the battle for rights is only ever won by struggling people. One of the brutal ironies of the past fifty years of global politics is that the Right has been repeatedly more “Marxist” in this sense than the Left.

The question of abortion rights came before the Supreme Court in 2022 because in the forty-nine years since the decision in Roe v. Wade, conservatives have been organizing to overturn it. They marched in their hundreds of thousands; their most radical foot soldiers even firebombed abortion clinics and carried out mass shootings of the people who volunteered for them. That violence changed the terms of the debate, persuading Republicans that by joining calls for the criminalization of abortion, they would win the support of an active and committed militant minority.

Think of where the present Republican supermajority on the Supreme Court comes from. In a situation of heightened conflict, the two parties adopted a different approach toward the nomination of justices. On the death of Antonin Scalia in 2016, the Republicans blocked Barack Obama’s nomination to replace him, citing a supposed principle that a president should not be entitled to nominate in the last year of their presidency.

By contrast, when Ruth Bader Ginsburg died in 2020, the Republicans insisted that the lame-duck Donald Trump could nominate her replacement. Worst of all, the Democrats agreed to play by Mitch McConnell’s rigged rules. One side was willing to apply force to win its victory, while the other chose compromise.

Socialists in the United States are living through a moment of legal defeats: not just the overturning of Roe v. Wade but also the judicial prohibition on gun control and the introduction of record numbers of anti-trans bills. As Clarence Thomas has made clear, the next targets for the judicial right are contraception, same-sex marriage, and the recriminalization of homosexuality. The Republicans have their supermajority on the court, and they will use it.

The Left, in response, must jettison the idea that the law is somehow “ours” and that it will remain sympathetic to our causes however little we do to organize to protect them. The law can be made into a shield, but only if judges and legislators are dragged into that position by the overwhelming pressure of a movement that remains in the streets. As Marx said: between equal rights, force decides.