Analysis Karl Marx's theories on law and discuss whether his theories apply to the English Legal System

This thesis investigates the theories of Karl Marx in relation to the English legal system, revealed in contemporary western democracy. Reference is made to Marx’s views on law followed by a critique on Marxist jurisprudence. It was conjectured as to whether Marxist theories could be applied to the English Legal System. One way to be certain of undermining the English legal system would be to impose the economic ethos of Marx upon it. Marx was an economist, not a lawyer: he studied law for just six months, attaining such low grades that his father, himself an eminent lawyer, sent his son to Berlin to study philosophy.

Marx’s name has been linked with the totalitarian regimes throughout the twentieth century, but Karl Marx died before the Russian Revolution: he was not responsible for Stalinism, the dictatorship of Mao Zedong, or any other communist regime. These totalitarian regimes were a matter of interpretation. Karl Marx was primarily interested in the struggle between the different class systems which, in his day, were profound. Socialism was the outcome of this perceived inequality.

The theories of Karl Marx are recognised today as the social conflict model which has resulted in socio-cultural change. It is submitted in this paper that the English legal system is based on the system of class, the ideology of which is generated through the existing dominant classes their ideas accepted as being for the common good. The concepts of Karl Marx have not had a direct effect on the English legal system, but the indirect effects have been profound on contemporary western democracy.

1. INTRODUCTION
1.1 DEFINE THE QUESTION

“Democracy exists so that free competitive individuals may
have and enjoy a maximum of freedom to pursue material wealth”

This thesis focuses on the theories of Karl Marx in relation to the ascribed definitions associated with the English legal system and evaluates whether these theories are compatible generally with the ethos of a contemporary liberal western democracy. Baldock et al considers that policy is defined as ‘a deliberate intervention by the state to re-distribute resources amongst its citizens so as to achieve a welfare objective’ . In the light of this statement, the Marxist model is examined in relation to concepts of democracy vis-à-vis their impact on political theory, following which attempts to reconcile this aspect to an efficacious definition of democracy which, although relating to the English legal system is not specifically constrained by that concept.

1.1.2 Background to Marxism

Brecht once said of Karl Marx:
“…there are those who struggle their whole lives…those are the indispensable structures of civilisation”

Karl Marx originated from Germany, the son of an influential lawyer. He attended the University of Bonn to study law in the mid-nineteenth century, although his developing philosophy precluded success in this Establishment-focussed environment and within six months he transferred to the University of Berlin where he became involved with an idealistic group, the ‘Young Hegelians’ , who dabbled in the study of philosophy, concentrating on the post-Aristolian and the post-Hegelian era. From philosophy Marx attempted a career in journalism and secured himself a position as an editor at the radical ‘Rheinische Zeitung’ German newspaper . Continuous conflict with government censors resulted in a return to philosophy for Marx, becoming known as a political activist whilst supporting himself and his young family as a self-employed journalist. A move to France resulted in a reunion with Friedrich Engels and between them they illuminated the economical situation prevalent amongst the working class population of that time .

A move to Brussels followed where, in 1848 Marx wrote ‘The Communist Manifesto’ which was commissioned by the Communist League which was an amalgam of various International Workingman’s Associations. He published his rhetoric as an ardent reaction against the ethos of the ‘Rockefellers’, those with an accumulation of wealth who, nevertheless, exploited the plebeian labour . As little attention was given to the education, sanitation and housing needs of these labouring classes Marx’s ideals were greeted as a product of the era and became very popular when they began to circulate.

Insurgence, first in Germany in 1848, and then in France where King Louis Philippe was removed from power resulted in a judicious move to England by Marx and Engels. Marx was initially involved in organising the International Workingman’s Association [the Communist League] which disbanded and whose lack of success enabled him to devote his time to writing a number of treatises, one of which was ‘Das Kapital’ [Capital: A Critique of Political Economy] . ‘Das Kapital’ refers to ‘variable capital’ explaining how the effort conferred by the proletariat has a direct effect on the ‘ratio of exploitation’, the consequence being an unwarranted significance in remuneration, with ensuing unemployment - a direct result of capitalism according to Marxist precepts .

Marx predicted this could result in a surplus of goods, affect balance of payments followed by an economic collapse. A redistribution of wealth and nationalisation of natural resources and assets was advocated by Marxists which would, they assured their proponents, re-establish a socialist system and re-balance public utilities and, overall, make all workers equal. An overall effect could involve the English legal system and did, albeit through the new legislation of EU legislation which is not discussed in this dissertation due to space constraints. However, in respect of contemporary Western democracy Brzezinski suggested, in the Trilateral Commission Report published in 1975:
“…the United States was plagued by ‘excess of democracy’ [and] “what is needed is a greater degree of moderation in democracy to improve ‘governability’”. He also suggested “Control over Man’s Development and Behaviour” to devise “new means of social control especially ‘in advanced societies’ .

DISCUSSION

2.1: MARXIST MILIEU

Marx epitomises the communist intention in the last chapter of the ‘Communist Manifesto’: “everywhere support every revolutionary movement against the existing social and political order of things”.

2.1.1 The Utopian Society
The concluding chapter of ‘Communist Manifesto’ proclaims:
“Let the ruling classes tremble at a Communistic revolution. The proletarians have nothing to lose but their chains. They have a world to win.
WORKING MEN OF ALL COUNTRIES, UNITE!”

The theory behind socialist precepts was inspirational in terms of mutual reliance on central resources but failed to account for the megalomania that power can promulgate when restrained by the concept of exclusive ordinance evinced in the dissemination of autocracy as a corollary of this doctrine. Étienne Cabet first introduced the term ‘communism’ into common usage with the meaning ‘a militant leftist form of socialism’ . This was later coined by Marx and Engel to reflect a widespread global philosophy, although it neglected to account for the ethos of human nature: the aspiration towards leadership is inherent in the characteristics of many individuals, with others content to follow. Society functions more efficiently when focussed on an efficient leader. The basic Marxist concept appertained to individuals striving to improve the common good, with individual interests of minimal consequence.

The doctrine of Marxism assumed an innate goodness in humans whose altruistic nature would prevail. Ultimately, however, the ambition of leadership led to domination, the entrepreneurial impulse was suppressed with the effect of diminished manufacture and the dearth of obtainable subvention resulted in a decline in edification. The Marxist Utopian society was elucidated in his treatise, the ‘Communist Manifesto’ which he published as a result of being influenced by the concept of fundamental human rights, equality and freedom during the late nineteenth century. The basis of Communism was an overthrow of the existing bourgeoisie [established government] in order to attain sufficient political power to impel insurrection, thereby facilitating the proletariat [workers] with a gamut of alternative strategies. The Marxist ideal was adopted in France in 1871, followed by Russia in 1922 and, more recently, the East German State incorporated this principle of socialist control in 1961.

Whilst the theories inspired by Karl Marx and Friedrich Engels perpetuated an early utopia, feudal or familial relationships were dispersed, giving way for conventional societal collectives where political autonomy was withheld from the proletariat. This disenfranchisement provided for an eventual Marxist downfall as rural poverty gave way to industrialisation and urban sprawl and dictatorships decried liberty and fundamental rights. Although the need for a prolific supremacy and conserved fiscal assets and pecuniary prominence immediately after the Bolshevik Revolution imposed Marxism on the remnants of imperialist Russia during the early twentieth century, a natural consequence of human nature results in an eventual re-assembly of various factions, re-establishing those systems through which individuals categorise themselves and identify each other, evidence of which can be clearly seen within the hierarchy of the English legal system and its interdependence upon the sovereignty of Parliament.

2.1.2 The Marxist Model: an Evaluation
The Labour Party introduced the Welfare State in 1947, instituting free education, free healthcare and social security benefits, much of the concepts being attributed indirectly to the theories of Karl Marx. Focussing on the industrial society, which the philosopher, Spencer , believes has evolved more, reveals an efficient decentralised authority with an organisation centred round the welfare of its individuals and an internal flow of productivity. Social control is balanced on fundamental rights and freedoms which enables a flexibility to increase its militancy in accordance with threats to its security . This centralises authority, social control increases and authoritarianism increases, a situation visible at present in the USA following the terrorist attacks on 11th September 2001.

The distributive and operative systems contribute their resources centrally in response to these external threats and the State gears itself towards war. With the threat removed, the industrialised State reverts to its former devolved powers. It is interesting to note that on 11th November, 1947, exactly two years to the day following the cessation of World War II, Winston Churchill as leader of the Opposition following an overwhelming majority in favour of the Labour Party being elected after many years of a coalition government was reported as saying to Parliament:

“Many forms of Government have been tried, and will be tried in this world of sin and woe. No-one pretends that democracy is perfect or all-wise. Indeed, it has been said that democracy is the worst form of Government except for all the other forms that have been tried” .

Marx and Engels studied natural phenomena within its environment and their resultant theories of dialectical materialism were developed as the results of these deliberations, that is, revealed through a sequence of reasoning. According to precepts of Marxism, the proletariat [the man in the street] are alienated from their true autonomy which would only be achievable following the collapse of capitalism and the inauguration of totalitarianism although, in reality, this concept is too simplistic and fails to account for the true imperfections of human nature. In order to publicise his theories Marx published the emotive and highly subjective ‘Communist Manifesto’ which opens with a description of the development of society and an individual’s place in that society, expounding the emergence of beneficence from the maleficent edicts of the bourgeoisie. Marxist concepts were by no means unique: nor was he the first to propound those theories: Marxism answered the appalling conditions the working classes lived and worked in during the rapid industrialisation of the nineteenth century.

Plato, a disciple of Socrates delineated a hierarchical society which incorporated the notion of slavery and the mutual tenure of property within the intellectual strata. Furthermore, he advocated common welfare principles of State ownership before individual possession and a curb on the production classes’ avarice. Socrates , meanwhile, in his exposition ‘The Republic’, advocated the abolition of individual families and the constraint on private property in the two custodian classes. Marx suggested that wage labour created capital , not property for the labourer. “One man’s wage increase is another man’s price rise” according to Harold Wilson when he was the Labour Prime Minister in the 1960s . Furthermore, private property was considered to be the property of alienated labour and the means by which labour alienates itself . According to Marxism, to achieve an ideal society it was necessary to abolish ownership of private property as:

“Communism is the positive transcendence of private property, or human self-estrangement, and therefore is the real appropriation of the human essence by and for man. It is a complete return of man to himself as a social being. The transcendence of private property is the complete emancipation of all human senses and attributes” .

The reason for this is because the concepts of Capitalism was epitomised in the recognition of the expansionary economic system. This was revealed in ‘unfettered accumulation of capital based on the private ownership of the means of production’ . A debatable point, possibly most at variance with Marxist principles in respect of the English legal system, could be revealed in the system of property law and conveyancing by which land is transferred between purchasers.

According to Front Page Magazine.com “The opening statement of Marx's famous manifesto, that the history of mankind is the history of class struggle, is really the essence and sum of its message”. The ‘Communist Manifesto’ contentiously begins by describing “A spectre is haunting Europe…All the powers of old Europe have entered into a holy alliance to exorcise this spectre…” . According to Marxist precepts, the French Revolution resulted in the victory of the middle class over the aristocracy which accorded with the Communist Utopia inspiration of the proletariat deposing the bourgeoisie to attain supremacy and benefit society with amelioration and innovations, evincible as a long sequence of enhancement of diversity in the scheme of manufacture and substitution .

A period of transition would then ensue during which economic adaptation would influence the development of technology as the government gained control of the land and urban employment became mandatory for the proletariat in order to reconfigure the economic significance.

“The modern bourgeoisie…has not done away with class antagonisms. It has established new classes, new conditions of oppression, new forms of struggle in place of the old ones”.

Marxist philosophy suggested that the annals of class conflict were concomitant with the efficacy of the economy, although he failed to account for the conflict between the influential people with jurisdiction over production and those who do not. Marxism Alienation Theory attributes the development of individual freedom to the events in human history and suggested that an individual’s freedom increases in correlation to increases in an individual’s production capabilities. According to Marx an inherent Material Productive Force both influence and inhibit our ability to provide for ourselves, with an upsurge fulfilling human needs.

“No social order ever perishes before all the productive forces for which there is room in it have developed; and new, higher relations of production never appear before the material conditions of their existence have matured in the womb of the old society itself” .

This detracts from a concern for survival thereby increasing an individual’s innate freedom. Marx correlates social structure with these productive forces which integrate to inhibit and curtail an individual’s freedom.
According to Marxism: “History is a process of change – change means the emergence of new structures, new forms” which Marx describes as:
1. Primitive Communal
2. Slave
3. Feudal
4. Capitalist
5. Socialist and Communist

Marx concludes in his ‘Communist Manifesto’:

“Let the ruling classes tremble at a Communistic revolution. The proletarians have nothing to lose but their chains. They have a world to win. WORKING MEN OF ALL COUNTRIES, UNITE!”

2.2: DEMOCRACY IN CONTEXT

2.2.1: Power and Authority in Society
Weber recognised the importance of power and authority in society, especially in relation to its effect on social policy and the State in its entirety . Authority and the development of power within society was largely the result of economic advantage , whilst “much policy making (in respect of political parties)….is about maintenance of the status quo and resisting challenges to existing values” . Blakemore suggests there is likely to be a divergence of opinion over what economic and social problems are likely to require government intervention. He believes that different social groups will look at the same problems in different ways, with different policies dependent on the perception of need .

A diversity of theories attempt to explain the ethos of those different social groups, often combining models to adequately verify a theoretical representation of the policy process . Blakemore depicts Marxism’s arch-enemy, the Democratic Pluralist Model; the Elite Control Model; and the Political Economy Model . Each of these models is dependent on society’s values as the basis for their input. However, as an example, the democratic political model emphasises the process and behaviour of the electorate, cross-party competition and participation, along with interest-groups’ influences as being the highly valued ideals .

2.2.2 Definitions of Democracy
Weale’s definition of democracy exhibits similarities to Lowi and Ginsberg who explain it as “a system of rule that permits citizens to play a significant part in the governmental process” . Weale, however, approximates human fallibility as empowered through a diversity of social policies to exact political equality. Where diverse social policy paradigms exist, various egalitarian interpretations of direct and indirect paradigms can be illustrated. An archetypical example of an indirect paradigm is exhibited in the sovereignty of Parliament or, topically, the Intergovernmental Conference [IGC] held during October 2004 where the Representatives of each EU Member State signed the Constitution on behalf of their individual countries. Direct democracy relates to an active initiative on each citizen to accept unequivocal accountability for evaluating decisions and acknowledging their significance , although arduously ineffectual in modern society due to complexity of government.

JS Mill observed that:
“The only government which can fully satisfy all the exigencies of the social state is one in which the whole people participate: that any participation, even in the smallest public function is useful. … But since all cannot, in a community exceeding a single small town, participate personally in any but some very minor portion of the public business it follows that the ideal type of a perfect government must be representative”

Amongst the many theories associated with models of direct democracy is the Participatory paradigm, which epitomises citizen involvement such as that experienced in Switzerland where all laws are subject to citizen referenda prior to ratification. Other theories include Protective Democracy, which has been described as “a minimal government existing solely to protect the liberties of a nation’s citizens” ; Developmental Democracy which recognises a ‘civic virtue’ in individuals ; and Pluralist Democracy, Marxism’s principle critic, promoting multiplicity and protecting diversity, with the “iron law of oligarchy” referring to a minority of individuals who hold the power. The Liberal concept of non-rivalry promotes a distribution of welfare freely available to all on the principles of non-excludability, explained as ‘clean air and the system of law’ . There does appear to be conflicting views in relation to the concept of collective welfare and an individualist approach which aims to maximise their benefits and the purely utilitarian views of those with a more altruistic concern .

2.2.3 Utopian Bureaucracy
Weber theorised on a utopia that necessitated ultimate specialisation within appointments, based on qualification and achievement and obviating status . Whilst this utopian concept was designed to promote a collective responsibility to achieve growth and prosperity, much of which is reflected in today’s ethos of capitalism and politics, Weber perceived individual offices to be highly specialized, with appointments made on the basis of qualifications rather than ascribed status. Collectively, these characteristics were designed to promote the mutual goals of the organization. This ideal-type bureaucracy was intended to promote economic growth and prosperity. Many of its concepts are echoed in modern-day capitalism and political systems. Weber developed a number of other ideal types, including ideal-type capitalism, which incorporates private ownership, pursuit of profit, competition, and a laissez faire attitude .

One of the disadvantages to bureaucracy that Weber described was oligarchy in which power was retained by the minority at the top of the organisation resulting in the danger of a few people holding all the social, political, and economic power and controlling all the aspects of people's lives, addressed in the English political system by the separation of powers, the sovereignty of Parliament and bicameral principles of the Houses of Commons and Lords. Michels investigated this phenomenon during the 1900s and concluded that effective leadership became more imperative as organisations increased in complexity, denigrating participatory principles of democracy, which would, of necessity, include Marxism, as being impractical due to size and diversity of administration .

Schattschneider (1960) is not a supporter of the pluralist premise, commenting: ‘the flaw in the pluralist heaven is that the heavenly chorus sings with a strong upper-class accent’ . One of the more prominent pluralist philosophers was Robert Dahl (1958) who posited: ‘power in many western industrialised societies is widely distributed among different groups’ . Dahl noticed that whilst implicitly disseminated incomparability imbued all factions with decision-making influence no single group attained dominance. This implies that factors such as motivation or prestige might accomplish pre-eminence, a concept Tullock (1976) and Brittan (1977) aspire to. Each observed that as the State’s significance enhances in political response to the intricacies of multiple stipulations, damage to the capitalist economy results from which they posited that ‘public choice theory does diverge from classical pluralist theory in giving a significant role to the state as an autonomous actor’ .

Hill acknowledged the development of the pluralist theory to which he recognised the validity of economists’ reasoning, isolating self-interest as the dominant interest and suggesting this particularly signified the political behaviour of the ‘New Right’ , illustrated in observations by both Nordhaus (1975) and MacRae (1977) who suggest “government expenditure, to satisfy demands and curb unemployment, is pushed up before election” , particularly topical with a General Election anticipated for 5th May 2005. Contiguously, those “preferences that prevail in conflicts over key political issues are those who exercise power in a political system” according to Dahl’s philosophy . Bachrach & Baratz (1962: 1963) and Lukes (1974) both concur with this ethos of a ‘ruling elite’ who, they suggest, manipulate policy for their own interests.

Interestingly, Hill contradicts himself when comparing the works of Dahl, Hunter and Wright-Mills . Whilst acknowledging the pluralist concept of “the political stage is accessible to all” he quotes Bachrach’s concept of ‘democratic elitism’ and suggests that, in recognising ‘re-conceptualising pluralism’ “the elites who mount that stage do so largely as the representatives of larger groups of people” .

Directly contrasting Dahl’s theory of equality amongst ‘interest groups’, the model of elite control is realised through radical deposition, military coups, manipulating utilities and dominating economic resources . Milibrand (1969) cited in Hill states that ‘the state is not a neutral agent, but rather an instrument for class domination’ .
The bureaucratic elite exercises hegemony over the proletariat whose labour is a powerful resource to keep the ruling classes in a position of power according to Marxist theory. This concept illustrates how capitalist societies generated economic power which contributed to its own downfall and portrayed a classical view of how policy is carried out by a different set of people to those who implemented the policy.

2.2.4 Globalist Policy
Hill suggests a globalist policy can be elicited from economic developments whose contributing factors could well be interpreted in respect of the integration of EU policy with policies of individual domestic governments “which emphasises either that national policy-makers must increasingly be able to deal with interests organised outside their country or that effective policy processes need to be supra-national too” . Meanwhile, Schattschneider (1960) expresses the importance of maintaining the status quo, believing also that only small decisions will be taken that make little immediate impact , an opinion Charles Lindblom concurred with . This model has been described as incremental pragmatism. Bachrach and Baratz (1963) comment: ‘non-decision takes place to maintain the status quo and operates to continue the marginalisation of the powerless and disadvantaged groups in society’, thereby reiterating the ethos of Karl Marx’s original concerns.

Bringing Posner’s philosophy down to its basic level is to put pragmatism into the perspective of local knowledge measured in terms of ‘what works’ by applying basic precepts to an individual’s ‘happiness and prosperity’. Posner is not, however, a supporter of the classic pragmatic outlook preferring an “everyday pragmatism” that “has much to contribute to law”. This philosophy relies on common sense to resolve problems, described by Posner as:

“a rejection of the idea that law is something grounded in permanent principles and realized in logical manipulations of those principles, and a determination to use law as an instrument for social ends”.

For all that Posner decries it being inherently political and describes it as being an attitude or a mood rather than a doctrine .

2.2.5 Relationships Engendered by Power
Nozick argues that the basis of the State is: ‘a need for a single and efficient protective association in a territory’ . Gaventa (1980) focussed on the relationships engendered by power which he described as being self-sustaining, with lack of power constraining future establishment . This concept was followed up by Dahl who pointed out that “government agencies are one set of pressure groups among many others” . An opposing outlook, such as Latham’s (1952) considered: ‘government is neutral and acts essentially as a referee in the struggle between groups’ . It is interesting to note that both these concepts reflect Marx’s social control model and concern over class domination.

In a democracy, however, a government has to be answerable to its electorate. Blakemore comments, however: “the example of law enforcement shows that any change of government at election time largely has the effect of exchanging one political elite for another” . Davies et al points out that “the hardening of government policies on law and order during the 1990s can be seen partly as the result of both parties trying to out-tough each other in the law and order debate” whilst Bachrach and Baratz attempt to maintain the status quo and caution against extremes. This view is echoed by Sabatier and Jenkins-Smith (1993) who refer to ‘low-key ideology’ in political party politics resulting in ‘policy-brokers’ who: “use other people’s ideas in efforts to frame electorally appealing programmes …… whose dominant concerns are with keeping the level of political conflict within acceptable limits and reaching some ‘reasonable’ solution to the problem” . (i.e. incremental pragmatism).

2.2.6 Democracy in Context
In any democracy Governments are elected in response to the whim of the majority: they are contrived by the people. Karl Marx would probably have approved of the direct democracy which works so well in Switzerland. It is administered through public referenda in response to legislation approved by the Government and does not become law until it has the peoples’ approval. Conversely, the indirect ethos of the EU has been described as a mirror-image of Switzerland’s policies and would have been denigrated by Karl Marx if he were able to publicise much of the deficiencies in its policies. Tocqueville puts the concept of democracy into context. His initial belief was of a dynamic process evincing “equality of condition” with minimal class differences. This, however, changed as he researched the ethos of American democracy and castigated the American concept of liberty.

Tocqueville wrote of a fear of “tyranny of the masses” and expressed a need for liberty to provide protection for society . However, he tempered this with the ethos of citizens’ rights also requiring the duty of responsibility to their communities. Professor Hart observed that laws based on morality would prevent society from evolving, but from his studies Tocqueville concluded that too much liberty was dangerous for the individual and society should “regulate it by beliefs, mores and laws” . Tocqueville eventually concluded that educated people would choose adequate representatives to enhance political culture.

Democracy can be seen to mean different things to different people. It is the product of social policy, the economy and politics, morality and law. To function it must have legitimacy. Philosophers have discussed liberty and pragmatism, elitism and “maintenance of the status quo and resisting challenges to existing values”. However, Blakemore elucidates the essence of democracy which reflects this writer’s personal belief: different policies are dependent on the perception of need in each society, the outcome of which is generated by that ethos of democracy revealed in legitimate government, recognised, within his own era, by Karl Marx and perpetuated since by the ethos of socio-cultural concepts which have spread into every field of civilisation from commerce to education, from law to the principles of politically-correct multiculturalism.

2.3: Critique of Marxist Jurisprudence
Marx was influenced by various philosophers, such as Aristotle, Hegel and Feuerbach, although Marx’s opinions of philosophers was rather disparaging. Marx was more concerned with actually changing the world than with existential reverie as suggested in his ‘Theses on Feuerbach’, “The philosophers have interpreted the world in many ways. What matters is changing it” .

Feuerbach himself considered “The periods of humanity are distinguished only by religious changes. A historical movement is fundamental only when it is rooted in the hearts of men. The heart is not a form of religion, so that the latter should exist also in the heart; the heart is the essence of religion.” It is easy to see how Marx was influenced by some of Feuerbach’s ideas. For instance, various epochs of human existence are attributed to Marxist theories, whereas, Marx has actually paraphrased some of Feuerbach’s own philosophy.

Saint Augustine took this a step further when wrote that “A community is a group of people united by the common objects of their love”, with these shared goals strengthening the community and promoting those values. This ethos introduces the social contract theory which defines the concept of popular sovereignty associated with legal traditions, denying legitimacy to any legislation unless it is the desired will of the people. Barry raised an interesting point: who are the extrinsic, indistinct, unpredictable populace who constitute the dispersible ‘public’? Barry expresses the opinion that the ‘public’ are symbolised by dissimilar factions in sundry localities contingent upon the significance of specific circumstances, i.e. the ‘public’ do not constitute an invariable characteristic all of the time but alter their evaluations per se . Some of the original theorists associated with the ethos of popular sovereignty were Hobbes and Lock together with Rousseau , who assumes an indenture exists between the populace to form a social contract – acclaimed as a significant precept of predominant democracy.
Rousseau’s contention lay with the people with his assertion that complete validity and incomparability emanated from their supremacy. From this context a prevalent autonomy diverged to concede to the principles of Marxist ideologies or to the modern concept of democracy based on the citizens’ egalitarian preferences, a divergence which has never been fully resolved. Rousseau’s Social Contract has been reaffirmed by other philosophers such as Dworkin , attesting to the fundamental legal ethics of modern democratic life realised through the rudimentary perception of popular sovereignty associated with the institutional design of a modern constitution.
Marxist jurisprudence has developed in the West, greatly influenced by the developments within China and the USSR. One of the proponents of Western Marxist jurisprudence is Renner who sought to adapt Marx’s ‘shifting power relations within the economic base’ to incorporate ‘…the seeming stability of legal norms’ . More latterly, Hugh Collins and Zenon Bankowski have been attributed as modern Western Marxist jurists. Collins wrote about “…rules which correspond to common sense ideas of right and wrong based upon the dominant ideology…” . Malinowski, within the modern ‘Micronesia’, observed that an individual who failed to conform to social morality and communal codes of behaviour would be ostracised , an observation allied to Weber’s ‘internal self-sufficiency of law’ which could be applied either rationally or irrationally according to precepts of that society . This would pose a threat to their survival, so in these communities the individual acknowledged it to be prudent to conform . Durkheim concurred with this observation , noting a prerequisite was a personal willingness to enter into a social contract as “social exchanges depend on the duty people have to the larger groups to which they belong” . He explains that social co-operation comes about ‘through shared social values and that the unit of analysis became the group rather than the individual’ .

Marxist theory correlates more with this ethos of positive law, involving the social ‘superstructure’ – as ever, grounded in economic theory [Marx was, basically, an economist not a lawyer or jurist]. His influence from Hegel extended to a correlation between dialectical materialist analysis and its overall ideological superstructure, the relevance of which is revealed in continual contradictions between productive forces and adaptations of property rights. Marx did not believe the law afforded autonomy and, in fact, following positive law principles it could not possibly be considered to exhibit autonomy: this would be a contradiction in terms.

Durkheim observed “one of the most original an important insights in the history of sociology” . This insight elucidated that once a group (or society) came into being, then it continued – even after the original member had left, and new members joined laying the foundation for Durkheim’s social realism . As a result of this, Durkheim argued that it was society not law, that imposed morality on individuals , i.e peer pressure, and outside influence, whilst law was the tool that “preserved morality” . These ‘social facts’ encouraged Durkheim to interpret the differences in morality across societies. This enabled him to understand the individual , although, as Professor Hart suggests, codes of morality in the guise of law could, in effect, preclude a society from evolving .

Durkheim also believed that ‘social realism justified the existence of sociology as an independent field of study’ , investigating the division of labour amongst members of various communities in which he noted a greater degree of dependency within simple societies. Durkheim named this dependence ‘mechanical solidarity, which was dependent upon a ‘collective conscience’ of common beliefs being held within that society which “exerted a strong influence on behaviour” . He noted a different dependence, ‘organic solidarity’, existed in more differentiated societies which he correlated with the strength of punishments and the nature of law in operation . This, he reiterated, weakened when shared beliefs declined .

Controversially, Durkheim believed that a certain amount of crime failed to harm society and was “normal and valuable in a healthy society” , with the ideas of right and wrong being reaffirmed through the existence of crime and punishment . This reflects a natural result of shared morality without which “rules would lack meaning” , promoting the concept of the “durability of social life inevitably assuming a definite form…”. This concept promoted Pampel to explain the differences in types of deviance and crime across societies with the suggestion that “the function of crime appears….to create emotional bonds among members of society. It increases solidarity” or, as related by Durkheim “we can thus be certain of finding reflected in law all the essential varieties of social solidarity”.

Positive law incorporated a compact between politics, economics, law, and social factors, together with both ethical and moral aspects. This did not, necessarily, attribute Marxism as a theory of jurisprudence but a product of a conglomeration of theories. The point of Marxist theories within the bounds of jurisprudence is his emphasis on the lack of autonomy in law , evidence of which can be clearly noted in the doctrine of separation of powers in the English legal system. From this original point Marxism jurisprudence assumes an adumbration which, fortunately, Engels puts into perspective .

Friedrich Engels did actually compare many of the legal systems and later published his observations. He writes that “private law…only sanctions the existing economic relations between individuals which are normal in the given circumstances…it is possible for the whole national development to retain in the main the forms of the old feudal laws while giving them a bourgeois content…” [referring to the Common Law in England being inherited from the infeudalisation of the Middle Ages]. What Engels fails to omit, however, is that this denigrated system actually succeeds in adapting to the changing ethos of modern society due to its innate flexibility realised through statute and case law.

This does explain Marxist jurisprudence in the most effective way. It does, however, present a ‘blinkered’ approach. The English legal system is by no means a perfect system but, it is one of the best and most adaptive available anywhere in the world. No system can ever present a perfect façade, when dealing with the exigencies of human beings, human nature being capricious but, nevertheless it is the subject that Marx made his own, and his jurisprudence reflects this.

3. CONCLUSION
In any democracy Governments are elected in response to the whim of the majority: they are contrived by the people. Direct democracy works so well in Switzerland through public referenda in response to any legislation that the indirect ethos of the EU has been described as a mirror-image of Switzerland’s policies. Tocqueville puts the concept of democracy into context. His initial belief was of a dynamic process evincing “equality of condition” with minimal class differences. This, however, changed as he researched the ethos of American democracy and investigated the American concept of liberty.

Tocqueville wrote of a fear of “tyranny of the masses” and expressed a need for liberty to provide protection for society. However, he tempered this with the ethos of citizens’ rights also requiring the duty of responsibility to their communities. Professor Hart observed that laws based on morality would prevent society from evolving, but from his studies Tocqueville concluded that too much liberty was dangerous for the individual and society should “regulate it by beliefs, mores and laws”. Tocqueville eventually concluded that educated people would choose adequate representatives to enhance political culture.

Democracy can be seen to mean different things to different people. It is the product of social policy, the economy and politics, morality and law. To function it must have legitimacy. Philosophers have discussed liberty and pragmatism, elitism and “maintenance of the status quo and resisting challenges to existing values”. However, Blakemore elucidates the essence of democracy which reflects this writer’s personal belief: different policies are dependent on the perception of need in each society, the outcome of which is generated by that ethos of democracy revealed in legitimate government.

Montesquieu propounds the total separation of powers, with no single person fulfilling more than one prominent position. Parliament in Westminster fulfils a bicameral unitary democracy where the English Constitution presents a tacit mandate, realised through the Statutes , The Common Law and established Conventions through which the various organs of State are co-ordinated. This indenture is inherent although not formally incorporated into the actual law. Through habitual utilisation revealing the expectations associated with these Conventions, a compliance affecting political and legal activities limits any prerogative powers, although not enforceable in law. The doctrine that maintains a separation of powers reinforces the concept of the constitution, thereby “…avoiding the risk of too much power being accumulated in one person or institution…” .

Marxist philosophy involved the creation of a better society which he described in terms of man’s innate goodness and translated his theories in terms of a capitalist economy. The Theory of Alienation was revealed in the alienation of man from nature, of man from himself, of man from his species, and of man from other men. Marxism explains that, to prevent boredom, people need to be fulfilled, with this void eventually alienating man’s will so that alienation ensues. According to Marxism, labour is an extension of the self which classifies an individual as a human being. According to Calhoun “The whole character of a species, its species-character, resides in the nature of its life activity, and free conscious activity constitutes the species-character of man”. From this concept, Marx suggests that capitalism removes the essence of man with the ethos of emotion being submerged beneath a surface of indignity and public morality.

Marx believed in historical phases that develop despite man’s conciliation, indicating an ultimate pre-ordained utopia where both history and change ceased. Marx believed that he could portend these junctures through empiricism, ultimately manipulating the evolution of history . Marx propounded the principle that individuals would either augment or oppose an inaugural phase in each new era but would ultimately be unable to amend the outcome. To Marx this philosophy was revealed in his observance of class struggle and facilitated by antagonism

Marx’s fixation with the parameters of historical eras encouraged him to believe that proletariat socialism would prevail in the face of the collapse of bourgeoisie capitalism, a concept upon which he considered followed a foreseeable pattern, not dependent on ‘arbitrary economic, social and political events’ . It is into this concept that Marx’s philosophy of dialectic ideology fitted. This model assumes the mode of history progresses is realised in class antipathy. A dialectic process has been defined as a notion being contradicted by an opposing view, known as the antithesis which, of itself, is resolved when a new hypothesis is introduced, thereby repeating the original sequence .

Whilst the theories inspired by Karl Marx and Friedrich Engels perpetuated an early utopia, feudal or familial relationships were dispersed, giving way for conventional societal collectives where political autonomy was withheld from the proletariat. This disenfranchisement provided for an eventual Marxist downfall as rural poverty gave way to industrialisation and urban sprawl, and dictatorships decried liberty and fundamental rights. Although the need for a prolific supremacy and conserved fiscal assets and pecuniary prominence immediately after the Bolshevik Revolution imposed Marxism on the remnants of imperialist Russia during the early twentieth century, factions eventually re-assemble as a natural consequence of human nature, re-establishing systems through which individuals categorise themselves and identify each other.

Professor Jowell mentions the “hazy nature of the British Constitution” which, in the United Kingdom has a tacit mandate, realised through the Statutes , The Common Law and established Conventions through which the various organs of State are co-ordinated, an inherent part of the charter without being incorporated into the actual law. It is this very ‘hazy nature’ allied with the separation of powers, the bicameral Houses of Parliament and the sovereignty of Parliament which ensures that, although immediate inspection would assume the class system in the English legal system is thriving, it is a healthy allusion. It is this very mandate that enables the English legal system to evolve and adapt to changing issues.

Through habitual utilisation revealing the expectations associated with these Conventions, a compliance affecting political and legal activities limits any prerogative powers, although not enforceable in law. The doctrine that maintains a separation of powers reinforces the concept of the constitution, thereby “…avoiding the risk of too much power being accumulated in one person or institution…” .

The Government’s policies of internment in Northern Ireland during the 1970s flouted the basic concepts of the Rule of Law, subsequently considered an illegality as well as unethical and immoral, and in complete contravention to Marxist ideals. The Executive has sometimes appeared to interpret the law according to its own purposes , or pursue certain legislation rather too vociferously , revealing a potential conflict with the ethos of the Rule of Law. The introduction of the ECHR has limited the power of both the executive and the Parliament, although attempts have been made by various Home Secretaries to derogate Article 5 of the Convention in respect of asylum seekers and, more recently the anti-terrorism issue, revealing an acknowledgement of Marxist principles even whilst not overtly applying them.

With the EU legislation limiting the sovereignty of Parliament it remains questionable whether the importance and relevance of the Rule of Law will retain sufficient impact to maintain true separation of powers and uphold the prerogative power bestowed by the Crown, and maintained by the Courts, as a privilege by convention which does create a potential for too much power accruing in a single person or institution as pointed out by Montesquieu. It is understandable that the various Select Committees have been set up throughout Parliament administrations’ to pre-empt this situation arising, with frequent written statements published as either Letters or Memoranda from Committee Members.

Marx (1848/1954) wrote that “The bourgeoisie has stripped of its halo every occupation hitherto honoured and looked up to with reverent awe. It has converted the physician, the lawyer, the priest, the poet, the man of science, into its paid wage labourers”. Unfortunately, these traditional time-honoured professions really have now been stripped of their reverent awe in this evolving twenty-first century socio-cultural civilisation but this has occurred as the result of higher educational standards and better qualifications according more equality to the masses – the proletariat, whilst the ruling classes continue to rule.
Marx believed that “The economic structure of capitalist society has grown out of the economic structure of feudal society. The dissolution of the latter sets free elements of the former”. This is interesting and highly debatable. The English legal system has evolved from the remnants of the feudal society. Contemporary legislation has evolved through many eras of precepts and is based on precedents developed concurrently from the basis of Common or Customary Laws and the principles and maxims of the Laws of Equity. Through this innovation, the British legal system has retained flexibility, with judiciary freedom of interpretation being a specific precept in the exposition of the Statutes through application of the Golden Rule, the Rule of Mischief and the Literary Rule to augment any efficacious evidence.
The original Common Law, administered by the King’s Council, provided a basic system of justice, but fell short of being in a position to cover all eventualities being mostly dependent upon honesty, whims and experience of the Lord Chancellor of the day. Through this failure the Court of Equity was inaugurated, initially based on common perception and discernment, together with a sense of morality. The two Courts officiated concurrently until the Act of Judicature amalgamated them into the Chancery Division of the High Court. Common Law evolved into the traditions and ceremonies that helped influence the introduction of the Equitable Courts through the incipient justification of the British feudal system of allegiance.

This hierarchical ceremony is still in evidence, reflected in the pomp and ceremony associated with the higher Law Courts and the Houses of Parliament, e.g. Black Rod knocking on the doors of the House of Commons at the State Opening of Parliament. Universities throughout the world incorporate much of this ceremonial pomp during annual Graduation Ceremonies with their emphasis on the correct attire of full graduation dress [cap and appropriate gown].

Ultimately, there has to be a balance between freedom and paternalism and between the needs of society and those of the individual. None can live in true and total isolation today and still reap the benefits of civilisation. Laws have to take into account the general will of the people, try to avoid prejudices and incorporate a degree of morality for the ‘general good’. However, who decides, and how much is acceptable. Locke’s philosophy was based on his view of the purpose and authority of law upon a quite well-developed social contract. He incorporated his observations of human nature into that which could be applied to the constitution and government of his day. This was resolved within the terms of a modern Parliament and the US Constitution as a response to society’s surrender of the power of its individuals to a State organisation, the ‘Sovereign’.

While the British legal system developed within the realms of natural law, along the way it has encompassed those views promulgated by each of the various theorists, both positivists and natural lawyers. Paling (1998: 94) believed that Austin’s work caught the legal mood of the time. Whilst Bentham explained the differences between law as it is and law as it ought to be . John Austin explained the basis of laws in terms of the procedure of utility whereby he “affirmed that utility was a ‘guide to moral sentiment’…Law is merely an instrument – utility an end” .

It would appear that while Hunt is not opposed to the socio-legal concept, he questions the position Marxism has taken in respect to the law, and while law is recognised as an established discipline, he queries the position Marxist sociology should take in relation to law to be effective. Hunt suggests sociology may be trying to force law out of its central position through the advent of the sociology of law, which he labels the ‘second phase of the sociological movement in law’ . Hunt speculates whether the ideas imposed by sociologists, such as Durkheim and Weber, regarding the influence of society over the involvement of law, are likely to have a direct impact on the law as it is. He also applies this to the question of law being the result of an emerging capitalist society requiring law to live by.
Marxism has undoubtedly had a covert effect on the English legal system. Society has reflected a changing morality resulting in changes in the law to reflect this. Along with changes in political policies and manifestos, acceptable legal rules change, with politicians stating how far the legal system will intervene in peoples’ lives, or what will be tolerated, or not, as the case may be. Within the High Court’s Chancery Division, equitable precepts continually evolve as society itself adapts, efficiently incorporating new laws to cover any of the latest deviations which appear as a result of the fast changes apparent at the pace life is being lived at the beginning of the 21st Century.
Total Word Count [excluding Abstract and Bibliography]: 8,000

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Legislation
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Bill of Rights 1689 and the European Communities Act 1972

Table of Cases
Entick v. Carrington (1765) 19 St Tr 1030; Council of Civil Service Unions v. Minister for the Civil Service [1985] AC 374, HL
Entick v. Carrington (1765) 19 St Tr 1030; Council of Civil Service Unions v. Minister for the Civil Service [1985] AC 374, HL
R v Secretary of State for Social Security, ex parte Joint Council for the Welfare of Immigrants [1996] 4 All ER at 385

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