Critical Legal Studies and Marx’s Critique: A Reappraisal

Abstract

Karl Marx never offered fully developed critiques of law or the state, let alone theories of jurisprudence or legal history. Many Marxists subsequently made the attempt—but efforts to articulate Marxian conceptions of law and state have often foundered on the limitations of relying on compressed or polemical claims in Marx’s early texts. Nevertheless, the elaboration of Marx’s critique of political economy necessarily involves critical inquiry into law. Legal relations are mutually constitutive with other social relations; law is a crucial moment in the totality of capitalist social relations. Critical inquiry into capitalism’s history requires attention to (among other things) law and jurisprudence. In the words of historian Jairus Banaji, the forcible creation and regulation of labour-markets are an intrinsic feature of capitalism and Marxists need to abandon the naïve view that law somehow stands “outside” this process and is not intrinsic to it. Duncan Kennedy and his colleagues in “Critical Legal Studies” demonstrated as much in the 1980s.