Comparison of Legal Formalism and Marxism

Introduction

Discussion as to how and what factors, whether internal or external, may influence law’s substance and application, has long been a great debate within jurisprudence and a multiplicity of stimulating theories of adjudication have been advanced. The traditionally mainstream position of legal formalism viewed that judging involved the application of established legal rules and principles to the facts of a case to deduce a logical conclusion.^[1] Whilst admittedly appealing for both its simplicity and faith in law’s determinacy, the legal formalism thesis has since been increasingly rebutted with critics contending that legal formalism fails to appreciate the clear discretion of the judiciary.^[2] Instead, opponents of legal formalism contend that normative issues such as religious beliefs, moral values and political ideals have a major and influential role in all areas of law, including that of adjudication.

Indeed, perhaps no greater dichotomy exists than that of the Marxism, a thesis which extends beyond law to provide an extensive view on the state of civilization and human nature more generally.^[3] On a Marxist perspective, all aspects of society are fundamentally and inextricably inter-related, and thus to conceive of the law in any sense as distinct from normative factors is profoundly flawed. Interestingly, Marxism can further be contrasted with legal formalism on the grounds that whilst legal formalism presents a tidy understanding of law, Marxism is remarkably complex, and possesses a number of seemingly incongruous points. By comparing and contrasting the theories of formalism and Marxism it shall be considered that whilst both positions suffer from their extremism, their contrast serves as a strong starting point for identifying a more moderate and cogent thesis for understanding law.

Context

To properly compare legal formalism and Marxism, it is beneficial first to briefly clarify their key assertions.

At its crux, legal formalism presents a descriptive theory of law, whereby law is settled and uncontroversial, with a clear internal logic.^[4] Subsequently, law can be said to possess a complete consistency and soundness that renders the act of applying it a mechanical process. Judicial reasoning is thus entirely deductive, and furthermore there is a singular correct answer to any legal question. Legal adjudication can thus be reduced to a three-step process: first, the simple ascertainment of facts, second, the identification of the pertinent legal rules and principles, and third, the application of the rules to the facts by the judge to give a result.  Legal formalists generally deny that factors such as the judiciary’s socio-economic background, political views or conception of the role and substance of morality would bear any influence on adjudication.^[5] Even more radically, legal formalists also deny that judicial discretion can arise from the indeterminacy of language and key concepts in law, whereby a variety of possible and feasible interpretations may exist, rather than a singular unambiguous meaning.^[6]

In contrast, Marxism is not primarily an account of law, but rather an account of the history of human society.^[7] Although Marx recognises the sizable influence and role of law in this account, he deems it to be only one of society’s many features that ought merit examination. As Collins aptly observes, in Marxism, law is essentially viewed as ‘tangential to a predominant focus on the general mode of social organisation and the material circumstances in which men are placed’.^[8] For Marx, law is a societal mechanism and thus is primarily shaped by the political structure of society. In the paper that he co-authored with Engels, The Manifesto of the Communist Party, Marx famously describes capitalism as defined by class struggles due to the bourgeoisie(the ruling class) who control the means of production and exploit the proletariat (the working class).^[9] Marx thus issues a passionate condemnation of capitalism, espousing instead the virtues of a theoretically egalitarian communism, which he considers to be the inevitable final state of society.^[10] As all elements of society are shaped by this, it follows too that so does law. It ought be noted that as Marx does not delineate a theory of law per se,^[11] most remarks regarding a Marxist perspective of the law are but suggested interpretations of Marx’s central thesis in a legal context.^[12] Nonetheless, there are common components of Marxist jurisprudence that can be identified, as will be elaborated on.

Influence on Adjudication

Per legal formalism’s understanding of law, the person behind the judge façade is irrelevant as a person’s own background and proclivities have no influence on their duty of mechanical application of facts.^[13] A commonly made criticism of this view is that by denying the existence of judicial discretion, legal formalists pre-empt any criticism of law’s outcomes; to maintain an uncompromising view that law is straight-forward and not influenced by the judiciary deters keen examination of either the judiciary or of their methods. However, not all conceptions of legal formalism are so rigid; for instance, Weinrib attempts to present restated and less parochial understanding of legal formalism by considering adjudicatory methods other than deductive reasoning which are still legally isolated in that they recognise no influence from public policy or any of the social sciences, such as reasoning by analogy.^[14] Whilst undoubtedly thought-provoking, it seems unpersuasive that this thesis can be described as a complete account of judicial adjudication.

This criticism is undoubtedly compliant with a Marxist perspective on law. As Marx views societal structures such as the legal system to be a tool of the bourgeoisie to maintain their power, it follows that the legislature and judiciary are too tools to this end.^[15] The notion that a judge may then apply a legal rule in a manner detrimental to the bourgeoisie thus becomes unthinkable. Indeed, Marx and Engels assert in the Communist Manifesto that ‘law, morality, [and] religion’ are mere expressions of the ‘prejudices’ of the bourgeoisie and behind these ideas ‘lurk in ambush just as many bourgeois interests’.^[16] Instead, it would likely be viewed that the judiciary would pretend to ascribe to a formalist conception of law, so as to deter the proletariat from questioning their authority, or the validity of the law laid down by the bourgeoisie legislature. This aids in the greater use of law as an operation to ‘prevent visibility of the exploitative nature of social relations’.^[17] It is also significant that the judiciary is populated by the bourgeoisie in a second sense: due to the lack of socio-economic diversity in the ruling classes, there is an absence of diversity of understanding and interpretation by the judiciary who are subsequently unable to sympathise with many of the situations they are presented with to judge, or with the circumstances of the proletariat. Consequently, when employing legal devices such as fairness, public policy grounds or the notion of the views of the reasonable average person, the judiciary is in fact employing conceptions of these which are distinctly subjective to the bourgeoisie.^[18]

Whilst this position may prima facie appear radical, particularly in regards to the primary understanding, the thrust of these claims have been echoed by other legal commentators. For instance, the critical legal studies scholar Unger presents an account of law as constituted of principles and counter-principles amounting to a radically indeterminate body of rules.^[19] He further posits that law is ultimately political, as lawyers’ understanding of whether a principle or counter-principle ought be dominant is grounded in their own socio-economic background and thus political perspective.^[20] Moreover, Unger’s thesis bears further similarities to Marxism in that he views lawyers and the politically empowered as working to conceal the law’s indeterminate status so they may continue to use it as a tool for maintaining their own power and denying political influence to the vulnerable and disadvantaged in society.^[21] Whilst Unger does not thus posit that the answer lies in a revolution to introduce communism, he does write about the reformative benefit of exposing law’s internal inconsistencies to achieve political ‘reimagination’ and power redistribution.^[22] Whilst it ought be said that Unger’s thesis represents a more moderate approach than Marxism to considering the political teleology of the judiciary and legislature, it demonstrates that the criticisms of adjudication stemming from a Marxist perspective are more compelling than they may initially appear.

Similarly, the view that it is not only desirable but imperative that the judiciary be diverse has gained much support in contemporary jurisprudence.^{[23] [24]} Rackley, for instance, presents a compelling argument that regardless of the theoretical applications of the truly unbiased ‘default judge’, the notion that they exist in reality should be dispensed of.^[25] Such a judge is a ‘superhero’, or perhaps more accurately ‘a creature of our imagination’ based on societal conceptions of what a judge should be.^[26] However, this ‘fairy-tale’ is not benign^[27]. This is because, Rackley explains, that if we accept that the judiciary will inevitably be influenced by their own experiences and perceptions, a diverse judiciary is necessary to fairly adjudicate on a diverse society.^[28] Brennan presents a concurrent argument, asserting that the belief that all, most or even any judges can claim the role of a ‘default judge’, of the type envisioned by legal formalists, is not just optimistic but foolish as it supposes that they have found the ideal balance between acting as a ‘demigod to whom objective trust has been revealed… [and] a legal pharmacist, dispensing the correct rule for the legal problem presented’.^[29] Indeed, judge’s ‘preconceptions influence decisions’ and this often occurs ‘unconsciously’.^[30]

Indeed, whilst the Marxist position here can be considered overly extreme in viewing that there are no formal constraints on judicial discretion, the legal formalist perspective has been rebutted by many theories, including legal realists, critical legal scholars, post-modernists, feminist legal scholars, and legal interpretivists, inter alia.^[31]One of the most famous critiques comes from the American jurist Holmes who presents an antithetical theory of deductive reasoning by the judiciary, instead the judges ascertain the facts, make a decision as to what the outcome ought be, and then use ex post facto reasoning to locate the principles and rules which would feasibly substantiate their decision.^[32] This position seems supported by the remarks of the influential lawyer Rose who remarked of the American legal system that ‘our courts can generally find precedents for almost any proposition’.^[33] 

Influence on Law’s Substance

Another key distinction of legal formalism and Marxism lies in that the former disputably claims to present a value-free account, whereas Marxism is primarily concerned with how the repressive structures of society can be overturned for the benefit of the proletariat. This is not to say that Marx advocates the removal of the legal system altogether, however all of his observations regarding the law are entirely critical. Moreover, Marxist jurisprudence can be distinguished from nearly all over main theories in legal study as it is driven not to provide an accurate account of law as either it is or ought be, but rather ‘the overthrow of the existing apparatus of domination’.^[34]

Indeed, whilst legal formalists technically purport to subscribe to a value-free account of law whereby law is a ‘closed and gapless’ system of rules, it can be generally stated from their literature that they are in no doubt as to the fundamental importance of law to society and its operation.^[35] Veitch, Christodoulidis and Farmer consider that legal formalism ‘is a realisation of the rule of law ideal’ as it means that all a state’s coercive actions are subject to established rules.^[36] Notably, the significance of the rule of law underpins many prominent jurisprudential theories; for instance the natural lawyer Fuller identifies eight chief characteristics of the rule of law which he submits are not just important but as constituting the very ‘inner morality of law’, and further that any rule lacking these characteristics cannot claim to be valid or authoritative law.^[37] The subsequent significance of this is that whilst legal formalism purports to eschew the influence of politics in law, it in fact has its own inherently political position as it is an ‘approach that seeks to uphold and promote certain political and moral ends too’ as it involves taking a staunch position on ‘the doctrine of the rule of law, the separation of powers, on personal, political and economic autonomy, and to judicial accountability in the political system’.^[38] Yet by denying the existence or influence of these concepts, legal formalism can be said to propagate this position whilst simultaneously attempting to shield it from any review or inquiry.

In contrast, on a Marxist approach, law is not integral to society. Collins describes this as a Marxist refusal to ‘fetishize’ law.^[39] This ‘fetishism’ can be said to have three components: firstly, that law is a prerequisite for a functioning society, secondly that law is ‘a unique phenomenon’ and thus requires individual focus and study, and thirdly the conception of the rule of law, whereby ‘good’ and valid laws must possess certain core features, such as being predictable, certain, fair, non-retroactive, to name but a few.^{[40] [41]} Rather, Marxism seeks to ‘emphasise’ and ideally ‘expose the law’s ideological effects’.^[42] It is undoubtedly a stimulating notion that whilst much of contemporary jurisprudence identifies the influence of extra-legal factors in law, they continue to treat law as a unique and inevitable system, whether directly or indirectly.^[43]

For Marxists, the rule of law is particularly notable in this regard as it promulgates the false idea that all persons within society, whether a member of the bourgeoisie or proletariat, are equals before the law, equally treated as per due process, which in turn legitimises law as one of the coercive mechanisms of law.^[44] This idea becomes more convincing when illustrated with a historical example, as is compellingly achieved by Thompson in his critique of the state of law and politics in 18^th century England, which shows a distinct indulgence for the Marxist movement.^[45] Indeed, Thompson’s account is particularly interesting for whilst he claimed allegiance to a Marxist understanding of jurisprudence, he does not rebut the influence of the rule of law per se, instead voicing ‘primarily historical and practical’^[46] concerns to present a ‘minimal’ rule of law account, rather than a theoretical ideal.^[47] Thompson’s thesis further deviates from classical Marxist jurisprudence and its refusal to fetishize the law as he does view it as an inevitable institution in any society, whether capitalist or communist, for the purpose of mediating social relations.^[48] Subsequently, Thompson’s works have proved controversial, and caused other members of the Marxist school to dispute both the logic of Thompson’s theory and his claim to be a Marxist.^[49] In contrast Cole launches a passionate defence of Thompson, considering his position to be a valiant effort to reconcile the liberal ‘rule of law’ with Marxism’s ‘radical legal criticism’.^[50] Whilst Cole’s argument, and thus Thompson’s, is compelling, it remains subject to many of the same criticisms as conventional Marxism.

Principally, whilst Marxism is distinct from most theories of law in that it does not seek to legitimise law’s power nor account for its operation, the criticism can be made of Marxist jurisprudence, and indeed of the Marxist thesis more generally, that Marxism is almost entirely critical without making prescription.^[51] Despite its ultimate objective of the realisation of political communism and suggestion that law could be a valuable tool in this regard, Marxist commentary generally devotes little attention to accounting for law’s role in an egalitarian revolution or its subsequent role in a post-revolution society.^[52] Moreover, Marxism alienates those who agree about the influence of politics but prefer an alternative political system to capitalism

Conclusion

Ultimately, whilst neither legal formalism nor Marxism present a wholly persuasive understanding of law, it is submitted that the critical Marxist approach to law presents a variety of compelling criticisms of the traditional formalist account, particularly in regards to the inevitable influence of extra-legal factors in adjudication and the role of politics. Although whilst formalism can be criticised for adopting a faux-apolitical, descriptive position, so too can Marxism be criticised for adopting an entirely faux-prescriptive, critical position. In regards to adjudication, the matter is astutely summarised by Posner, who states that ‘judging is political. It is also ‘personal’ in the sense that judges’ personal attributes… influence judging… But judging… is also impersonal and non-political in the sense that many, indeed most, judicial decisions really are the product of a neutral application of rules not made up for the occasion to facts fairly found’.^[53] In terms of law’s substance, it is important to question law’s internal consistency and principles which are rarely questioned such as the rule of law, alongside the power of external factors such as politics in law. Indeed, whilst legal formalism and Marxism do not provide the answers in themselves, their comparative evaluation raises many relevant questions that aid in beginning a more thorough, nuanced and multi-faceted evaluation of law, in both a descriptive and normative capacity.

Bibliography

Books

• Belliotti R, Justifying Law (Temple UP, 1994).
• Collins H, Marxism and Law (OUP, 1984).
• Fine B, Capitalism and the Rule of Law: From Deviancy Theory to Marxism (Hutchinson, 1979).
• Fuller L, The Morality of Law (Yale UP, 1969).
• Hart H, The Concept of Law (3rd edn, OUP 2012).
• Marx K and Engels F, The Communist Manifesto (first published in 1848, The Floating Press, 2009).
• Pashukanis E, Law and Marxism: A General Theory (Pluto, 1978).
• Posner R, How Judges Think (Harvard UP, 2010).
• Rackley E, Women, Judging and the Judiciary: From Difference to Diversity (Routledge, 2013).
• Ratnapala S, Jurisprudence (3^rd edn, CUP, 2017)
• Tamanaha B, Beyond the Formalist-Realist Divide: The Role of Politics in Judging (Princeton, 2009).
• Thompson E, Whigs and Hunters (Breviary, 2013)
• Unger R, The Critical Legal Studies Movement (HUP, 1986).
• Veitch S, Christodoulidis E, Farmer L, Jurisprudence: Themes and Concepts (2^nd edn, Routledge, 2013).
• Weinrib L, Legal Reason: The Use of Analogy in Legal Reasoning (CUP, 2005).

Articles

• Brennan W, ‘Reason, Passion and ‘The Progress of Law’’ (1998) 10 Cardozo LR3.
• Cole D, ‘An Unqualified Human Good: EP Thompson and the Rule of Law’ (2001) 28(2) J LS 177.
• Holmes O, ‘The Path of the Law’ (1897) 10(8) Harv LR 457.
• Horwitz M, ‘The Rule of Law: An Unqualified Human Good’ (1977) 86 Yale LJ 561.
• Rose U, ‘American Bar Association’ (1902) 64 Albany LJ 333.
• Vincent A, ‘Marx and Law’ (1993) 20(4) J LS 371.

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[1] S Ratnapala, Jurisprudence (3^rd edn, CUP, 2017) 110

[2] B Tamanaha, Beyond the Formalist-Realist Divide: The Role of Politics in Judging (Princeton, 2009) 27, 44

[3] K Marx and F Engels, The Communist Manifesto (first published in 1848, The Floating Press, 2009)

[4] Tamanaha (n 2) 13

[5] ibid 159

[6] H Hart, The Concept of Law (3rd edn, OUP 2012) 12, 126 – 128

[7] Marx and Engels (n 3) 6

[8] H Collins, Marxism and Law (OUP, 1984) 9

[9] Marx and Engels (n 3) 9

[10] ibid 30.

[11] B Fine, Capitalism and the Rule of Law: From Deviancy Theory to Marxism (Hutchinson, 1979) 151.

[12] See generally: E Pashukanis, Law and Marxism: A General Theory (Pluto, 1978).

[13] Tamanaha (n 2)

[14] L Weinrib, Legal Reason: The Use of Analogy in Legal Reasoning (CUP, 2005) 123 – 130.

[15] Collins (n 8) 2

[16] Marx and Engels (n 3) 24

[17] S Veitch, E Christodoulidis, L Farmer, Jurisprudence: Themes and Concepts (2^nd edn, Routledge, 2013) 219

[18] Ratanapala (n 1) 222 – 223

[19] R Unger, The Critical Legal Studies Movement (HUP, 1986) 118

[20] ibid 40 – 41

[21] ibid 41

[22] ibid 27

[23] Tamanaha (n 2) 109

[24] See also: R Belliotti, Justifying Law (Temple UP, 1994) 28 – 29

[25] E Rackley, Women, Judging and the Judiciary: From Difference to Diversity (Routledge, 2013) 130

[26] ibid 135

[27] ibid 165 – 166

[28] ibid 135

[29] W Brennan, ‘Reason, Passion and ‘The Progress of Law’’ (1998) 10 Cardozo LR3, 4

[30] R Posner, How Judges Think (Harvard UP, 2010) 369

[31] Eg. Unger (n 19) 1 – 3, 11

[32] O Holmes, ‘The Path of the Law’ (1897) 10(8) Harv LR 457

[33] U Rose, ‘American Bar Association’ (1902) 64 Albany LJ 333, 336

[34] Collins (n 8) 1

[35] Ratnapala (n 1) 110

[36] Veitch (n 17) 123

[37] L Fuller, The Morality of Law (Yale UP, 1969) 106

[38] Veitch (n 17)123

[39] Collins (n 8) 14

[40] Ibid 11 – 12

[41] See also: Hart (n 6) 100 – 106

[42] Vetich et al (n 17) 222

[43] Collins (n 8) 14 – 15

[44] ibid 14

[45] E Thompson, Whigs and Hunters (Breviary, 2013) 259 – 261

[46] D Cole, ‘An Unqualified Human Good: EP Thompson and the Rule of Law’ (2001) 28(2) J LS 177, 183 – 185

[47] Thompson (n 45) 258  – 259

[48] Ibid 260

[49] M Horwitz, ‘The Rule of Law: An Unqualified Human Good’ (1977) 86 Yale LJ 561, 566

[50] Cole (n 46) 202 – 203

[51] A Vincent, ‘Marx and Law’ (1993) 20(4) J LS 371, 371 – 372

[52] ibid 372

[53] Posner (n 30) 372