A Marxian Theory of Law

Dissertation, Cornell University (1987)

Authors
Hon-Lam Li
Chinese University of Hong Kong
Abstract
The fact that half of the world is ruled under the banner of Marxism and that there were no easily comprehensible and thorough studies of Marxist theory of law makes it worth investigating in some detail whether there is a Marxian theory of law, and, if so, what a Marxian theory of law would be like. Although Marx's and Engels' writings broadly relevant to law amount to some two hundred pages, it is clear that in these writings neither Marx nor Engels has put forward anything like a theory of law. If there is a Marxian theory of law to be discovered, it would have to be extracted, extrapolated and reconstructed from these writings. ;The reconstruction undertaken here has turned out to be fruitful. It seeks to demystify and explain the phenomenon of law. It is argued that one major function of law is to promote and stabilize the economic realm of society, and that law exists in order that the economic realm can be developed. And hence the various features of law as a whole are to be explained functionally by the needs and dynamics of the economic realm. ;The second, equally vital, role of law is its class character. It is argued that there is a ruling class in pre-socialist societies, and that the ruling class uses the law to maintain and further its own interest. How the law is used as a ruling-class instrument is examined in some detail. ;Further, it is explained how various legal ideas are delusive, and how the process of trial is prone to the pervasiveness of the dominant ideology. It is shown that many phenomena in law cannot be satisfactorily accounted for except via a Marxian perspective. Especially true is the absence of a starvation defence in criminal law. For if there is the provocation defence, an analogous reasoning makes the case for a starvation defence compelling. And while the absence of the starvation defence cannot be justified, it can be explained on a Marxian perspective. ;The focus of the dissertation is on the law in capitalist societies, especially in England, because Marx and Engels wrote mostly on the English society, and because the development of law reaches its highest point in capitalism. Another reason is that the author is most familiar with English law
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