Marx, economics and law

In the "Critique of the Gotha Programme" (written 1875) Marx poses an amazing question with respect to justice.

Marx is critiquing Lasalle's loose idea, concretized in the program of the German Workers Party, that in a socialist society all that which the labor of all members of society effects (the products of their labor) should be returned or distributed back to them (in some form--Marx is quick to mark the vagueness here) in equal shares, so that everyone roughly gets what they work for. A similar spirit is seen today in arguments on the left for socialized services but without any handouts--the ethic of work must be preserved! What Marx shows is that those who make people work do not work themselves (they own), and thus to say that everyone should get repaid for their work is just saying that the exploitation of the worker should continue unmitigated. But the question itself we are interested in comes on the scene when Marx begins to ask what distribution entails with respect to rights--that is, how this restitution of the products of labor should be, as the Gotha Programme says, "justly distributed." Marx asks the following:

What is a "just" distribution?

Don't the bourgeoisie claim that the present distribution is "just?" And on the basis of the present mode of production, isn't it in fact the only "just" distribution? Are economic relations regulated by legal concepts, or on the contrary, don't legal relations arise from economic ones? (211)

An idea of justice (the concept which law is supposed to enact, and thus a "legal concept" as Marx says--though he is far from clear about the relationship of law, justice and rights) then gets founded upon this idea of return and this ethic of work, and so we are led into a quagmire that current legal theorists and legal economists are today still tackling. We should note that though Marx is talking about a specific socialist program, he opens up this question into the relation of law and economics generally, so indeed what he says can pertain (if we read him correctly) to what goes on now.

Marx offers several interesting theses that outline his view of the problem:

1. "Rights can never be higher than the economic form of society and the cultural development which is conditioned by it" (214). This looks like a case for economics, but it is this only if we admit a complex and nuanced notion of economics. All Marx is saying is that rights (legal rights conferred upon the subject with an idea of justice issuing forth from them) cannot and should not promise more than the current economic reality provides--i.e. they should not be ideal, but should reflect the material conditions of society. This means that rights must reflect class distinctions, or, put in wider terms, economic distinctions such that they change with respect to the economic constitution of subjects. The "economy" is not a homogenous thing, as it is for legal economists who wish to tie it to law, to make it determine right, but differs in its distributions of wealth. If this is the case, justice would reflect the economy, but would remain independent of it, because it must able to be something that can differentiate across various sectors of the economy, thus always being more than just the mere economy itself. To say that rights must be the same amongst subjects and extend over all this economy equally means to say essentially that all rights are bourgeoisie rights--for only the bourgeoisie could conceive of a right that could apply to all of society (for they in their wealth and ownership can indeed choose to descend if they want to. In short, what Marx says is not "an ideology of rights-and-so-forth," that is, a film on the eyes of the poor that makes them act like they have the rights of the bourgeoisie when they do not--and when they are punished for acting in this way. 

2. "Criminal justice is freely available everywhere; civil justice is almost exclusively concerned with property disputes, therefore almost exclusively it is the possessing classes that are affected" (224). Marx is mocking the language of a legality that idealistically is said to be available to everyone, to apply everywhere, and thus letting the upper classes get away with things because their trespassing is more mediated through material possessions. The irony is that it makes the upper classes seem like the lower classes because they have to put up with civil justice instead of criminal justice. But if we look at what this says positively, another thesis of Marx comes up: criminal justice applies unequally to the poor--that is, the poor get prosecuted as criminals, while the rich get prosecuted in terms of property disputes, whose penalties are much less or at least whose status gets retained (they are not seen, conceptually, as offending against the law as much as the criminal). However, this thesis exposes many of the problems of a class based notion of the conflicts within the conditions in society in history: civil justice also and in fact primarily can be used by the poor. But this is only if we turn what would be criminal justice into civil justice: that is, if we make the person something that can be owned--in other words, if we turn the subject into the subject of civil rights based on something like the 14th Amendment. Perhaps Marx is foreseeing this problem. Regardless, we can see here that the economic situation also does not straightforwardly engender justice and, as our elaboration of Marx's foresight shows, can actually just further entrench justice in a bourgeoisie conception of selfhood which does not reflect economic reality. This is most thoroughly addressed (and perhaps becomes an alternative to civil rights as property) in the next point.

3. "This equal right [to have "justly" distributed an equivalent to the labor of a person to that person, the right of the laborer for restitution of the value of labor, to have justice be the justice of economic distribution] is an unequal right for unequal labor. It acknowledges no distinctions of class, because everyone is a worker just like everyone else, but it tacitly recognizes unequal individual talent and hence productivity in labor as natural privileges. Therefore in content this is a right to inequality, like all rights. By its nature a right can only consist in the application of a common standard; but unequal individuals (and they would not be different individuals if they were not unequal) are only commensurable in terms of a common standard... e.g. [if they were] considered in a given case only as workers., and nothing else about them is taken into acount, all else being disregarded... To avoid all these faults, rights would have to be unequal, instead of equal" (214). Here the situation in our first point produces some drastic consequences, and some proscriptive remarks made with respect to the law in general. The call for "equal rights" is a call for the right to be equally submitted to the brutality of an inadequate justice of wealth distribution, because only those who already have the rights that you (the person calling for "equal rights") seek are the ones with the money. So long as justice does not confront this leveling-effect of the call for equal rights, it can only lead to a subjugation of the worker in the face of the system that entailed this person's demand for rights in the first place. Why? Not because equal rights would be a bad thing, but because "in content this is a right to inequality, like all rights." In other words, this means that because the form of rights--which is not perhaps in itself unequal--remains tied to a justice that must benefit those who have wealth and power,  the content must always be the same right to inequality. Marx isn't making a case against the form of rights explicitly here, saying that rights must necessarily be rights to inequality and that we should do away with law and justice altogether. Instead, he is saying that if you think you are going to immediately see equality spring up when the form of your rights changes through changes in the law, you will be mistaken. For the discrepancy between the form of rights granted by the law and the actual content of those rights as determined by the conditions surrounding a subject is the space in which rights moves and inhabits and tries to correct, rather than the space which it tries to do away with completely. Demanding rights then is always going to also be demanding inequality in another form--this is just another way of reading the same sentence.

This is because the language of rights, as we noted above, is for Marx the language that veils the conditions of the subject, which are economic. One should note, then, that this does not refute the law and economics crowd. In fact, it is an argument for their use of economics to determine justice--justice will coincide with an effort to accommodate the inequality in the distribution of wealth, not to ensure its equal distribution. The distinction is key: the latter tries to keep law within the sphere of economics through turning economics into the science that protects the wealthy subject--the subject who conceives of himself as having abstract freedom to do what he wants, because materially with his wealth (or, more expansively, his abilities to get wealth) he can. The justice which addresses economic inequality must naturally question whether a current economic system is creating more problems than it could ever reduce to an an abstract equality among its subjects guaranteed in the language of rights. In fact, the law that enacts this justice must account for this irreducibility, and do it economically--because the problems that always escape the language of rights are for Marx economic problems.

This is what Marx means when he says that "rights would have to be unequal, rather than equal." Rights must not try and restore the subject to an abstract free (bourgeois) subjecthood, but must be granted with respect to how they themselves create unequal subjects. In fact, for Marx, they must create unequal subjects to be law. Whether this can still be called "rights" isn't as important as the emphasis Marx is making on what rights should accomplish. Insofar as rights become a call for equality, getting them, for Marx, will only displace the inequality. Insofar as rights become a call for inequality, for respect of the law for the situation of those without rights, then we have justice. I don't think this is exactly right, but this is what Marx is saying. It comes down to this for Marx: when we ask for "equal rights" we are actually really asking for "unequal rights." When an underpriviliged group is calling for rights to be equal, they really don't mean (for Marx) that rights should grant them the rights of everyone, but that rights should come to respect the condition of uniqueness that causes inequality to fall on their heads. Thus it is a demand for laws that bring about unequal rights. Unless the law can actually address this condition, can actually vary itself across the economic strata to respect the conditions of the people, it will further entrench an economic situation that thinks it applies equally to all strata--capitalism.