Marx: Historical and Dialectical Materialism

Together they form the mode of production, which is the economic base of a society.

The superstructure: the legal and political institutions, the state, and the forms of consciousness, law, religion, morality, philosophy and art, which arise on that base and correspond to it.

The dynamic. The forces of production develop continuously, through invention and accumulated technique. The relations of production, being fixed in law, property and custom, are conservative. At a certain stage the developed forces come into conflict with the existing relations, which had assisted them and now fetter them. That contradiction is resolved by a transformation of the relations, and with them of the whole superstructure. A period of social revolution follows.

The stages of history he identified: primitive communism, ancient or slave society, feudalism, capitalism, and, he predicted, socialism and communism.

Where law sits, and what the theory says about it

This is the part a law student must be able to state precisely, and it is where the crude version does most damage.

The claim. Law belongs to the superstructure. Its form and content are conditioned by the economic base, and it operates to stabilise and reproduce the existing relations of production. The law of property defines and protects the ownership on which the mode of production rests; the law of contract supplies the enforceable exchange that a market economy requires; and the state, with its coercive apparatus, secures both.

The supporting observations, which are genuinely powerful and should be given rather than the slogan.

1. Property law follows the mode of production. The forms of property recognised by a legal system, and the transactions it permits, correspond closely to how that society produces. Feudal tenures, and the law of the joint stock company, are each intelligible only in relation to their economic base.
2. Legal change accompanies economic change. The Indian legal changes described in [Liberalization and Globalization] followed a change in the economy rather than preceding it.
3. Law's form is not neutral in its effects. A rule applying equally to all bears unequally where the parties are unequally placed, which is the point of the standing observation that freedom of contract between an employer and a worker is freedom in form only.

The qualifications, which are essential to a good answer.

Marx and Engels did not hold the crude version. Engels wrote expressly, in his later letters, that the economic factor is determining only in the last instance, and that the superstructure reacts back upon the base. Law is therefore not a mere reflection.

The relative autonomy of law. Later Marxist writing accepts that legal systems develop by their own logic, that legal professionals are not simply agents of a class, and that the law's own claim to generality constrains what can be done with it.

E. P. Thompson's argument, which is the most important qualification and should be named. A legal system that was nothing but an instrument of the powerful could not perform the ideological work required of it, because it would deceive nobody. To be believed, it must sometimes actually restrain the powerful, and it does. He concluded that the rule of law is an unqualified human good, which is a striking conclusion from a Marxist historian and is precisely why it is worth quoting in substance.

The position to write: law is shaped by the economic structure and serves to reproduce it, and it is not reducible to that function, because its generality and its independence are the conditions of its authority, and they give subordinated groups a real, if limited, purchase on it. That is the same conclusion reached from the other direction in [Law and Social Change].

The criticisms

1. Economic determinism. Weber's demonstration in [Weber: The Protestant Ethic and the Spirit of Capitalism] that religious ideas contributed to the development of capitalism is the standing counter-case, and Weber's three dimensions of stratification are the standing correction.
2. The predictions failed. Polarisation of classes did not occur; the intermediate strata grew; and revolutions occurred in agrarian rather than advanced industrial societies, which is the reverse of what the theory implied.
3. The base and superstructure metaphor is too crude. Law is part of what constitutes property, so it is not simply built on top of an economic base that could exist without it. This is the sharpest objection for a lawyer: ownership is a legal relation, so the base already contains the superstructure.
4. It underrates non-economic divisions: caste, religion, region, language and gender, all of which have organised collective action in India far more effectively than class.
5. It is unfalsifiable in its stronger forms, since any failure of the prediction can be attributed to false consciousness or to a delayed contradiction.
6. Class consciousness did not develop as expected, which is treated in the next chapter.

A worked example

Take the abolition of intermediary tenures after independence.

The materialist reading. The forces of production, agricultural technique, irrigation, the capacity to produce a marketable surplus, had developed to a point at which the existing relations of production, a tenure system that placed non-cultivating intermediaries between the state and the cultivator, obstructed further development. The relations had become a fetter. The legal change removed them, and the superstructure adjusted to a changed base.

What that reading gets right. The economic pressure was real; the beneficiaries of the old arrangement resisted through the courts, which is exactly the class conflict the theory predicts; and the property law of the previous order was intelligible only in relation to the mode of production it served.

What it gets wrong, or leaves out. The change was legislated by a state acting under a Constitution, not produced by a revolution. Its extent varied enormously between states with similar economies, which an economic explanation cannot account for and a political one can. Caste, which the theory treats as secondary, decided in many places who actually obtained the land. And the constitutional amendments that made the reform possible, discussed in [Property], were legal changes that preceded and enabled the economic ones, which the base and superstructure sequence does not accommodate.

The honest conclusion: the materialist account identifies the pressure and the interests correctly and does not by itself explain the timing, the variation or the mechanism, and an answer that says so is better than one that either adopts or dismisses the theory wholesale.

Quick revision

1. Karl Marx, 1818 to 1883. MU prints "Karl Mar". Communist Manifesto 1848; Das Kapital volume I 1867; the 1844 Manuscripts, written 1844 and first published in 1932.
2. Dialectical materialism: reality is material; everything is in process; change comes from internal contradiction; quantitative change becomes qualitative; the negation of the negation. Hegel's dialectic with the idealism removed.
3. Historical materialism: forces of production (means of production plus labour power and technique) develop; relations of production (ownership and control) are conservative; the two come into conflict and the relations become a fetter; the contradiction transforms the whole order.
4. Base and superstructure: the mode of production is the base; law, the state, religion, morality and philosophy are the superstructure.
5. Stages: primitive communism, ancient, feudal, capitalist, and predicted socialist and communist.
6. Law: superstructure; property law follows the mode of production; formal equality bears unequally. Qualifications: Engels's determination only in the last instance; the relative autonomy of law; E. P. Thompson, that a law which never restrained the powerful could deceive nobody, so it must sometimes really restrain them.
7. Criticisms: economic determinism, answered by Weber; failed predictions of polarisation and of where revolutions occur; the metaphor is crude, since ownership is itself a legal relation; it underrates caste, religion, region and gender; and it is unfalsifiable in strong forms.

Test yourself

1. Distinguish dialectical from historical materialism. Dialectical materialism is the method: reality is material rather than ideal, everything is in process, and change is produced by the conflict of opposed tendencies within a thing rather than by anything external to it, quantitative accumulation eventually producing a qualitative transformation. Historical materialism is that method applied to human history: the forces of production develop, come into conflict with the existing relations of production which then fetter them, and the resulting contradiction transforms the whole social order.

2. Explain base and superstructure, and where law sits. The forces of production, that is the means of production together with labour power and technique, and the relations of production, that is the relations of ownership and control, together form the mode of production, which is the economic base. The legal and political institutions, the state, and the forms of consciousness, law, religion, morality and philosophy, constitute the superstructure arising on that base. Law belongs to the superstructure: its content is conditioned by the mode of production, and it operates to define and protect the ownership on which that mode rests.

3. State the qualifications a good answer must add about law. That Engels wrote expressly that the economic factor is determining only in the last instance and that the superstructure reacts back upon the base; that later Marxist writing accepts the relative autonomy of law, which develops by its own logic and is administered by professionals who are not simply agents of a class; and that E. P. Thompson argued that a legal system which was nothing but an instrument of the powerful could deceive nobody and so could not perform its ideological function, so that to be believed it must sometimes genuinely restrain the powerful, which gives subordinated groups a real purchase on it.

4. What is the sharpest objection to the base and superstructure metaphor from a lawyer's point of view? That ownership is itself a legal relation, as [Property] shows: property is not a thing but a socially recognised and enforced relation between persons about a thing. If the relations of production consist in ownership and control, and ownership exists only because law constitutes it, then the base already contains what the metaphor places in the superstructure, and the picture of a legal storey resting on an economic foundation cannot be maintained in that simple form.

5. Apply the theory to the abolition of intermediary tenures in India, and state its limits. On the materialist reading, agricultural forces of production had developed to a point at which a tenure system interposing non-cultivating intermediaries fettered further development, so the relations were transformed and the superstructure adjusted. That identifies the economic pressure and the resisting interests correctly. Its limits are that the change was legislated under a Constitution rather than produced by revolution; that its extent varied greatly between states with similar economies, which requires a political explanation; that caste frequently decided who obtained the land; and that constitutional amendments enabling the reform preceded the economic change rather than following it.