Marx, Law, Ideology, Legal Positivism

Brian Leiter

University of Chicago

July 13, 2014

U of Chicago, Public Law Working Paper No. 482

This essay -- for the UVA conference on "Jurisprudence and History" -- offers an account of Marx’s theory of history and his claim that law (and morality) are "ideological," and then asks what theory of law is adequate to explain the way the Marxist theory understands law in both its ideological and non-ideological senses. In Marx's theory we need to be able to say what law is in three contexts: (1) there are the laws that constitute the relations of production, i.e., the scheme of property rights in the existing forces of production; (2) there are the laws (and associated legal beliefs, e.g., "you are entitled to equal protection of the law") that are superstructural and ideological in the pejorative sense; and (3) there are the laws that are non-ideological and superstructural because they characterize the legal relations of a non-class-based, i.e., a communist, society. I explain these different senses of law in Marx's theory and then argue that legal positivism, unlike other views about the nature of law, gives us a sensible explanation of law for purposes of the Marxist theory of historical change. That fact, in turn, gives us another data point in favor of positivism as the only serious explanation of the concept of law.

Number of Pages in PDF File: 23

Keywords: Iegal positivism, Marx, Hart, Dworkin Finnis, ideology

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Date posted: July 14, 2014 ; Last revised: August 12, 2014

Suggested Citation

Leiter, Brian, Marx, Law, Ideology, Legal Positivism (July 13, 2014). U of Chicago, Public Law Working Paper No. 482. Available at SSRN: http://ssrn.com/abstract=2465672 or http://dx.doi.org/10.2139/ssrn.2465672

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Brian Leiter (Contact Author)
University of Chicago ( email )
1111 E. 60th St.
Chicago, IL 60637
United States
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