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Blackwell Anthologies in Social and Cultural Anthropology
Series Editor: Parker Shipton, Boston University
Series Aclvisory Editorial Board:
Fredrik Barth, University oí Oslo and Bostan University
Stephen Gudeman, University oE Minnesota
Jane Guyer, Northwestern University
Caroline Humphrey, University oE Cambridge
Tim Ingold, University of Aberdeen
Emily Martin, Princeton University
John Middleton, Yale Emeritus
Sally Falk Moore, Harvard Emerita
Marshall Sahlins, University oí Chicago Emeritus
Joan Vincent, Columbia University and Barnard College Emerita
Law and Anthropology
A Reader
Edited by
Sally Falk Moore
Drawing from sorne of the most significant scholarly work of the nineteenth and
twentieth centuries, the Blackwell Anthologies in Social and Cultural Anthropology
series offers a comprehensive and unique perspective on the ever-changing field of
anthropology. It represents both a collection of classic readers and an exciting
challenge to the norms that have shaped this discipline over the past century.
Each edited volume is devoted to a traditional subdiscipline of the field such as the
anthropology of religion, linguistic anthropology, or medical anthropology; and
provides a foundation in the canonical readings of the selected area. Aware that
such subdisciplinary definitions are still widely recognized and useful - but increas­
ingly problematic - these volumes are crafted to inelude arare and invaluable
perspective on social and cultural anthropology at the onset of the twenty-first
century. Each text provides a selection of classic readings together with contempor­
ary works that underscore the artificiality of subdisciplinary definitions and point
students, researchers, and general readers in the new directions in which anthropol­
ogy is moving.
1 Linguistic Anthropology: A Reacler edited by Alessandro Duranti
2 A Reader in the Anthropology of Religion edited by Michael Lambek
3 The Anthropology of Politics: A Reader in Ethnography, Theory, and Critique
edited by Joan Vincent
4 Kinship and Family: An Anthropological Reader edited by Robert Parkin and
Linda Stone
5 Law and Anthropology edited by Sally Falk Moore
flJ
Blackwell
Publishing
29
LAW AS PART OF THE SUPERSTRuaURE
'.
• <
5
Karl Marx: The Mode of
Production at the Base - Law
as Part of the Superstructure
:
..
lritroduetion
.­
;"
Mar~'~id~as,arelNéHek~ownilrld'llluchcommentéddn.Fbr hini thé ei:ori()rTtyWas
the~~~.is-;Qf'spcietal.stfuq:ure~ ThernP-deofpmducti()ii, thé means'ofpródlJetion;
thes9cial"r~lationsof pr'oductiQn¡were'the coreo He readlewisHenryMprQah¡
and;co/J*ud:ed;hisqwnsket~~y.yefsJonota theoíy of the evolutib/JofsQciety
whj ch,wásl1Ql. pI,IQli~he~inhisd,ifétime(l:lobsbawm; .ed., 19Ei4):' Hisdo.seasso<:i~
ate, .Fri~~ri(CI1En~,~I~"work~clduta. ni0re fínished version of that:'¡h,istory'.~liásed .
. ()ri:·tvI6~~éln:,,;En~elf; TIJ~,Qi¡gi(J .pf' tb~ .FamiJy, Private Prop~rtY:il"fl</the'$f<¡t~ ••.•
~l~.8f),~il~P,:,gllshe~d\lft,~rl\4~rol() death.The booken ~a\IV ilr!l:rs.ttO'ilotqic9ig~r!"··
l2iilt r.O.nljY' Katli~iR~N~)fII~an (.1983) quoted here ~hows .thaÚp!TiÉ!élnthtoPQ!O:.·.. '.
gis~s,.h?yé~~U~dqYi(3~r.~r~,I):~é'ideas f.ruitfu' an<;l. h(3veprod1J~éc!lh,eif9wh, .
revl~ed"ers,ors()f ªne"ol~tl()naryS~quel)l;e. .' .... .... . ' > ' ......•... '.';
.
A. vas~I.I~~raturehas:.f~·r;r:néCJa,:oi.md,M<!rx's oeuvre. His ideashad;<fónsider<Íbl~, '
influenc.e'ih:!:irithr~~O,!~gyyvher;etf¡e speetiKle of HI.e cÓlóni'alé><pe;i.!:!rlc;e" 'Elv~n
mO,re t.HaÍ1;thecjilemma$ oftheW.(¡)r~ilig dé}ss; stiinulé}ted;sY.llJpát.fi~t\"a~a,IYsis;".
. Marx(~ ~;ten~ral t?e?ret¡c~I;¡¡~})ré>~~t;lc~rtalo'ly :sh!:ipe?Jhe. thfr)kíry9.}dtri1~riY.éf; ,
tho~~ .lflterElstedl n lavy¡Ma~x,s":Qwn.wor:dsq uoted 'bere, more'orle-ss'expláiril:lis
posltlon.Heafwa.ys"saliV :lawiaS'b~ihgil'\' tite .hand~ oftKoséwnoseiúterest'si;t>. '
expre~sed.B.ut in'hiSSFhemeoflhir\gs,law Wé'lS asecondaryplienorn~~Qñ, Ra~'Qt:
the supersírllctúre; whiQl'ji1hisview, c1aimed causal significéinée.forits~lfthat~it
didnot haVé.
'"
.'.
..
.. .
'
.
c
For recent imthrqpólogy. in additionto his economic ideas, Marúmost influ~
en~jal views were tl10se about the socialunconscious, the capacity ofhUinan
Qelngsto deny underlying economic realities and to become preoccllpied whh .
~
.
thesurface representatipns.of cl,Ilture.andpraetice. This theme V"iJs taken up by
Pierr~,B()urdielJ who wrote ethnographyin a Marxist"infh.ienc;~clvocabuliuYi·
m¡:lki{l9iTluth 6f.éultural "iTljsrecpgnition" and of ')odal capital'~ (l,977):. Beur;-.
dieu wroteonlawusingthisapproach to. analyze "the sociology of the jUrídical.
field,"(t987t Whatfollows here are some key quotationsfromMarx himsel(
thaf arE!' pertinent to l a w . ' ·
'.
Selected Writings
Karl Marx
I was led by my studies to the conclusion that legal relations as well as forms of State
could neither be understood by themselves, nor explained by the so-called general
progress of the human mind, but that they are rooted in the material conditions of
life, which are summed up by Hegel after the fashion of the English and French
writers of the eighteenth century under the name civil society, and that the anatomy
of civil society is to be sought in p0litical economy.
In the social production which men carry on they enter into definite relations
that are indispensable and independent of their will; these relations of production
correspond to a definite stage of development of their material powers of production.
The totality of these relations of production constitutes the economic structure of
society - the real foundation, on which legal and political superstructures arise and to
which definite forms of social consciousness correspondo The mode of production of
material life determines the general character of the social, political and spiritual
processes of life. It is not the consciousness of men that determines their being, but, on
the contrary, their social being determines their consciousness.
At a certain stage of their development, the material forces of production in
society come in conflict with the existing relations of production, or - what is but
a legal expression for the same thing - with the property relations within which they
had been at work before. From forms of development of the forces of production
these relations turn into their fetters. Then occurs a period of social revolution. With
the change of the economic foundation the entire immense superstructure is more or
less rapidly transformed. In considering such transformations the distinction should
always be made between the material transformation of the economic conditions of
production which can be determined with the precision of natural science, and the
legal, political, religious, resthetic or philosophical - in short ideological, forms in
which men become conscious of this conflict and fight it out. Just as our opinion of
an individual is not based on what he thinks of himself, so can we not judge of such a
period of transformation by its own consciousness; on the contrary, this conscious­
ness must rather be explained from the contraclictions of material life, from the
existing conflict between the social forces of production and the relations of pro­
duction.....
From Karl Marx, Se/ected Writings in Soci%gy andSocia/ Phi/osophy, tr. T. B. Bottomore (New York,
Toronto, and London: McGraw-Híll Book Company, 1956), pp. 51-2,78,79,147,223,225-7.
30
KARL MARX
The ideas of the ruling class are, in every age, the ruling ideas: i.e. the class which
is the dominant material force in society is at the same time its dominant intellectual
force. The c1ass which has the means of material production at its disposal, has
control at the same time over the means of mental production, so that in conse­
quence the ideas of those who lack the means of mental production are, in general,
subject to it. The dominant ideas are nothing more than the ideal expression of the
dominant material relationships, the dominant material relationships grasped as
ideas, and thus of the relationships which make one class the ruling one; they are
consequently the ideas of its dominance. The individuals composing the ruling class
possess among other things consciousness, and therefore think. In so far, therefore,
as they rule as a class and determine the whole extent of an epoch, it is self-evident
that they do this in their whole range and thus, among other things, rule also as
thinkers, as producers of ideas, and regulate the production and distribution of the
ideas of their age....
The social relations within which individuals produce, thesocial relations of
production, are altered, transformed, with the change and development of the
material means of production, of the forces of production. The relations of produc­
tion in their totality constitute what is called the social relations, society, and,
moreover, a society at a definite stage of historical development, a society with a
unique and distinctive character. Ancient society, feudal society, bourgeois (or capit­
alist) society, are such totalities of relations of production, each of which denotes a
particular stage of development in the history of mankind.
Capital also is a social relation of production. It is a bourgeois relation of produc­
tion, a relation of production of bourgeois society. The means of subsistence, the
instruments ofIa bour, the raw materials, of which capital consists - have they not been
produced and accumulated under given social conditions, within definite social rela­
tions? Are they not employed for new production, under given social conditions,
within definite social relations? And does not just this definite social character stamp
the products which serve for new production as capital?
Capital consists not only of means of subsistence, instruments of labour, and raw
materials, not only of material products: it consists just as much of exchange values.
All products of which it consists are commodities. Capital, consequently, is not only
a sum of material products, it is a sum of commodities, of exchange values, of social
magnitudes....
Since the State is the form in which the individuals of a ruling class assert their
common interests, and in which the whole civil society of an epoch is epitomized, it
follows that the State acts as an intermediary for all community institutions, and
that these institutions receive a political formo Hence the illusion that law is based on
will, and indeed on will divorced from its real basis - on free wilL Similarly, law is in
its turo reduced to the actuallaws.
Civillaw develops concurrently with private property out of the disintegration of
the natural community. Among the Romans the development of private property
and civil law had no further industrial and commercial consequences because
their whole mode of production remained unchanged. Among modero peoples,
where the feudal community was disintegrated by industry and trade, a new phase
began with the rise of private property and civillaw, which was capable of further
development ...
LAW AS PART Of THE SUPERSTRUCTURE
31
It should not be forgotten that law has not, any more than religion, an Índepend­
ent history ...
In historical fact the theorists who considered force as the basis oflaw were directly
opposed to those who saw will as the basis of law.... If force is taken to be the basis of
law, as by Hobbes, law and legislative enactments are only a symptom or expression
of other conditions upon which the State power rests. The materiallife of individuals,
which certainly does not depend on their mere "will," their mode of production and
their form of intercourse, which reciprocally influence each other, are the real basis of
the State. This material life is, at every stage in which the division of labour and
private property are still necessary, quite independent of the will of individuals. These
real conditions are not created by the State power; they are rather the power which
creates it. The individuals who rule under these conditions, quite apart from the fact
that their power has to constitute itself as a State, must give their will, as it is
determined by these definite circumstances, a general expression as the will of the
State, as law. The content of this expression is always determined by the situation of
this class, as is most clearly revealed in the civil and criminallaw. Just as the bodily
weight of individuals does not depend upon their ideal will or caprice, so it does not
depend on them whether they embody their own will in law, and at the same time, in
accordance with individual caprice give everyone beneath them his independence.
Their individual domination must at the same time form a general domination. Their
individual power rests upon conditions of existence which develop as social condi­
tions and whose continuance they must show to involve their own supremacy and yet
be valid for all. Law is the expression of this will conditioned by their common
interests. It is just the striving of independent individuals and their wills, which on
this basis are necessarily egoistic in their behaviour to each other, which makes self
denial through law and regulation essential, or rather self denial in exceptional cases
and maintenance of their interest in generaL ... The same holds good for the subject
classes, on whose will the existence of law and the State is equally little dependent.
Crime, Le. the struggle of the single individual against the dominant conditions, is
as little the product of simple caprice as law itself. It is rather conditioned in the
same way as the latter. The same visionaries who see in law the rule of an independ­
ent and general will see in crime a simple breaking of the law. The State does not rest
on a dominating will, but the State which arises out of the material mode of life of
individuals has also the form of a dominating wilL If this will loses its domination
this means not only that the will has changed but also that the material existence and
life of individuals has changed despite their will.
We have already seen how, through the activity of philosophers, a history of
pure thought could arise by the separation of thought from the individuals and their
actual relations which are its basis. In the present case, also, law can be separated from
its real basis, and thereby we can arrive at a "ruling will" which in different periods
has a different expression and which, in its creations, the laws, has its own independ­
ent history. By this means political and civil history is ideologically transformed into a
history of the dominance of se1f-developing laws.
GI (1845-6)
MEGA V5, pp. 307-9
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NEWMAN, LAW AND ECONOMIC ORGANIZATION
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Classic Themes in New Forms
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Law and Economic Organization
NEWMAN, LAW AND ECONOMIC ORGANIZATION
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economic situation is the basis, but the various elements of the superstructure ...
such as constitutions ... juridical forms ... political, legal, philosophical theories
... also exercise their influence ... There is an interaction of all these elements in
which ... the economic movement is finally bound to assert itself. (Enge1s to
Bloch, in Cain and Hunt 1979:56)
':
Katherine Newman
There is a long and varied tradition of Marxist writings on law and legal
development. Marx and Engels themselves never provided a complete theory
of law, but rather expressed their views on law in the process of discussing
larger philosophical and historical themes. As a result, writers in the Marxian
tradition have been confronted with numerous fragmentary passages on law in
Marx's and Engels's writings, which they have synthesized in an attempt to
build a Marxist theory of law. However, since the fragments themselves are not
entirely consistent, room has been left open for divergent interpretations, all of
which may legitimately claim the imprimatur of Marx and Engels.
One of the more heated controversies to emerge from the recent literature
concerns the extent to which Marx and Engels argued for a "determinist" view
of law in relation to economic forces. This problematic has traditionaIly been
addressed by quoting passages that stress the dependence of superstructural
institutions upon the system of material production, as in the following weIl­
known excerpt:
Whichever reading was actually intended by Marx and Engels, contemporary
Marxist scholars have advanced the view that superstructural institutions exist
in reciprocal interaction. Each has a certain causal influence on the others, but
retains a degree of independence.
The most influential proponent of this position is Louis Althusser (1969),
who identifies three leveis of social structure (or "instances," as he terms
them): the economic, the political, and the ideological. In different modes of
production, different "instances" will be dominant, that is, will play the major
causal role. Nevertheless, each instance is "relatively autonomous." We take
this to mean that each develops its own idiom and institutional formo Similarly,
according to Althusser, each instance has its own history, that is, its own logic
of development.
Although Althusser admits that the economy is "determinant in the last
instance," he has clearly diverged from the more traditional reading of Marx
and Engels, which lays much greater emphasis on economic causation. The
Althusserian image seems to be one whereby each area of social structure sets
limits for the others, but the content and form of each remains at least partiaIly
autonomous.
In discussing law, Althusserian or Structural Marxists argue that:
The sum total of [the] relations of production constitutes the economic structure
of society, the real foundation, on which rises a legal and political superstructure
and to which correspond definite forms of social consciousness. (Marx in Tucker
1972:4)
Law is always under the control of the ruling class in the broad sense but it does
not always originate in economic class conflict, function well for the ruling class,
reflect the full range of ruling class opinion, remain immune from the lawyers and
bureaucrats who administer it, or serve economic ends. (Sumner 1979:255)
An extreme determinist reading of this statement would suggest that the
agenda, form, and content of law are directly derived from the economic
relations of production, with no reciprocal causation admitted. The metaphor
of "reflection" characterizes this position.
Although it seems reasonable to interpret Marx as believing that economic
relations b~~een classe~ determine the nature of property in any given society,
and that thIs m turn defmes the core areas of law, one can also find statements
that indicate an understanding of the reciprocal effect, whereby law molds
social development:
The actors who shape the law are not necessarily economic classes, nor is the
agenda of law limited to the regulation of economic relations. However,
whatever the degree of relative autonomy between law and economy, it is
nevertheless clear that the Marxian paradigm as it was originally articulated
posits a strong relation between the two realms. These relations are perhaps
best understood in terms of the functions of law from the perspective of
historical materialismo
Marx and Engels discussed three principal functions of law: ideological,
political, and economic. These realms are always intertwined in the texts
themselves; I separate them here for the purposes of analytic clarity.
Ideologies are sets of concepts and beliefs that describe and explain the
world. Within the Marxian framework, ideologies are typically viewed as
representing the position of a particular class in society and as such tend to
be incomplete or biased systems of knowledge. Law may be seen as a form of
ideology that describes social relationships and expresses a social morality.
(See Sumner 1979 for a thorough treatment of this issue.)
KARL MARX AND FRIEDRICH ENGELS: LAW AND mSTORICAL
MATERIALISM
According to the materialist conception of history, the ultimately determining
fa~tor in,hi,story is ,the production and reproduction of real life.... If somebody
twlsts thls mto saymg that the economic factor is the only determining one, he
transforms that proposition into a meaningless, abstract, absurd phrase. The
From Katherine Newman, Law and Economic Organization (Cambridge: Cambridge University Press
1983), pp. 17-25.
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NEWMAN, LAW AND ECONOMIC ORGANIZATION
As an ideological system, law performs in two ways. On the one hand, it
legitimates the social order by presenting existing social relationships as
normal, desirable, and justo On the other hand, according to Marx and Engels,
law also fulfills an. ideological function by obscuring and mystifying the true
nature of social relations. Through doctrinallanguage, it presents an image of
"legal man" detached from his foundations and stripped of his reality as
"economic man." Law describes and guarantees a social realm of equality
and liberty for aH, which is false insofar as it ignores underlying socioeconomic
inequalities. For example, the law regards an employment contract as an
agreement freely concluded by two equal parties (employer and employee),
whereas Marx argued that the propertyless laborer is coerced into seHing his
labor, given his inability to subsist any other way. The employer is not equal to
the worker; in practice the former sets his own terms. Engels made a similar
point with respect to the marriage contract: It obscures and disguises the
subordination of wives. Law hides these realities behind the seemingly univer­
sallanguage of contract and as such is performing an ideological function.
Law is also ideological insofar as it represents people as isolated individuals
- the citizen - rather than as members of c\asses. It is precisely one's inclusion
in such groups that Marx argued determines one's social existence. Law
therefore obscures relationships or conflicts between classes by presenting
them as connections between individuals.
The second function of law in the Marxian tradition concerns its polítical
role. Law is viewed as an instrument by which classes struggle to improve their
lot vis-a-vis others. In most cases, the ruling classes will have the greatest access
to law as a tool for furthering their interests. Marx described the Enclosure
Acts, the Vagrancy Statutes, wage-reduction legislation, and the like as in­
stances whereby property owners utilized the legal process to confiscate land,
force the idle to work, and push down wages. Analyzing a series of statutes
from the thirteenth century on, Marx showed that their cumulative effect was
the creation of a landless proletariat (Marx 1970:672-93).
However, those in power are not the only actors seeking to use the law for
their own ends. The role of law in the political arena is also seen in the struggle
of nondominant c1asses to improve their living conditions by placing legal
limitations on their opponents. Marx's discussion in Capital of the workers'
struggle to enforce a maximum workday is an example of this latter type.
It is important to note that this "instrumentalist" reading of the political
functions of law has been subject to considerable criticism by subsequent
Marxist theorists, including Pashukanis (1978), Cain and Hunt (1979), and
Sumner (1979). As Greenburg and Anderson (1981:295) put it, "instrument­
alism exaggerates the extent of direct ruling class control over law." These
objections are addressed to a position that overstates the influence of one
group over the legal apparatus. However, most adherents to the Marxist
tradition would agree that the law is an arena of struggle between groups
and that particular laws can be read in many cases (though not aH) as express­
ing the outcome of such conflicts. In this sense, law fulfills a polítical function.
Law also p1ays a crucial role or function in the economic realm. For Marx
and Engels, social inequality flows from unequal access to basic resources,
T
NEWMAN, LAW AND ECONOMIC ORGANIZATION
35
which are expressed in terms of property law. By defirung and guaranteeing
the rights of property owners, law regulates basic relationships between
individuals. Another aspect of this involves the legal regulationof labor, either
by contract or by traditional rules regarding pay, hours, and the mutual
obligations obtaining between employers and employees.
AII important economic relationships from the factory to the family find
their expression in legal doctrine, which in turn guarantees a stable basis for
economic production. As Engels put it:
At a certain, very primitive stage of the development of society, the need arises ro
bring under a common rule the daily recurring aets of production, distribution
and exchange of products, to see ro it that the individual subordinates himself to
the common conditions of production and exchange. This rule, which at first is
custom, soon becomes law. (Quoted in Cain and Hum 1979:55)
As this sketch indicates, Marx and Engels believed that law cross-cuts the
ideological, politica1, and economic rea1ms. Particular laws may address any or
all three of these.
We will now turn to the theory of legal development they proposed. From
their general perspective of historical materialism, Marx and Engels argued
that in any given society legal change follows on the heels of developments in
the economic mode of production. The best-known statement to this view is
found in the preface to A Contribution to the Critique of Political Economy:
At a certain stage of their development, the material productive forces of society
come in conflict with the existing relations of production, or - what is but a legal
expression of the same thing - with the property relations within which they have
been at work hitherto ... With the change of the economic foundation the entire
immense superstructure is more or less rapidly transformed. (Marx in Tucker
1972:4)
As the forces of production develop, Marx and Engels suggested that the
legal and political superstructure would eventually fetter the productive forces.
Revolution would follow, which would overhaul the legal relations in society,
once again bringing about a correspondence between the marerial foundation
and the superstructure.
Marx and Engels did not elaborate this theory of legal change beyond
this general formulation. It was left to later theorists, such as Karl Renner, to
apply this framework. Renner was a Marxist scholar writing in the early
1900s. His book, The Institutions of Private Law and Their Social Functions
(1949), is a classic work in the Marxist theory of legal development, although
it is much criticized (d. Sumner 1979:248-9; Cain and Hunt 1979:65). In
it, Renner argued that an adequate understanding of the relationship between
law and economy cannot be based on static studies of one historical periodo
Only by considering the connections between these two realms in the
context of historical change can an adequate understanding be developed
(Renner 1949:58). Renner's theory of legal evolution is based upon an exam­
ination of the transformations in law and society that took place between two
T"
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NEWMAN, LAW AND ECONOMIC ORGANIZATION
important historical epochs: independent commodity production and early
capitalismo
Renner's theory of legal change is explicitly analogous to one of the
central tenets of Marx's theory of social change; namely, that the forces of
production develop faster and therefore "out-distance" the social relations
of production, finaUy coming into contradiction with them. Renner argued that:
The historical development of the law, and the growth of individual laws and
their decay, flow from the disparate development of the legal and economic
institutions ... The change in the social functions of legal institutions takes
place in a sphere beyond the reach of the law and eventually necessitates a
transformation of the norms of the law. (Renner 1949:52)
Renner presented a three-stage developmental model of legal change. The
first stage consists of a point in time when law "matches" the social and
economic circumstances from which it originates. During the second stage,
transformations take place in the economic sphere (particularly in the organ­
ization of production), while the content of legal norms does not undergo any
noticeable transformation. However, though the law itself has not altered, its
social functions have undergone a drastic transformation: Preexisting legal
doctrines combine to fulfill the social functions required by the new economic
situation. The third stage of Renner's theory is the least explicated. He sug­
gested that, over the long run, legal norms undergo a transformation in content
such that they again correspond to the economic circumstances of their time.
Renner's discussion of transitions in property law provides an example of
this thesis. In the age of simple commodity production, people owned their
own means of production, sold their products directly to consumers, and were
the owners of their homes and land. It was at this stage that the Roman law of
dominium was adopted, which specified that individuals had the right "to free
and unfettered control over tangible things." At the same time, a companion
law emerged that aHowed independent producers to purchase raw materials
and seU finished products: the norm of free contracto Renner suggested that, at
this point "the world of norms was ... fuUy adapted to the substratum, the
world of facts."
GraduaUy, however, simple commodity production gave way to classical
capitalismo The independent producer became a wage laborer. He no longer
owned the means of production: it owned him. He occupied his house as a
tenant rather than as an owner. Despite these socioeconomic changes, the
content of the law remained unchanged. How were these structural transform­
ations dealt with by the law? Renner answered that the laws of property and
contract were combined to accommodate the new arrangement. Workers
themselves became "property" in the sense that the capitalists could now
own their labor power.
But what is control of property in law, becomes in fact man's control of human
beings, of the wage laborers ... We see that the right of ownership thus assumes a
new social function. Without any change in the norm, ... a de {acto right is added
I
NEWMAN, LAW AND ECONOMIC ORGANIZATION
37
to the personal absolute domination over a corporeal thing. This right is not
based upon a speciallegal provision. Ir is the power of control, the power ro issue
commands and to enforce them. (Renner 1949:107)
One reading of Marx would lead the researcher to look for transformations
in the institutional structures or substantive content of law as one economic
epoch gives way to the next. In contrast, Renner suggested that an analysis of
changing functions of legal doctrines rather than institutional structures will
provide a better understanding of the transformation of law.
The Marxist theories outlined in this section derived from studies of law
under capitalism (or from the transition between feudalism and capitalism).
Hobsbawm (1965:20) has pointed out that Marx's interest in preindustrial
epochs was directed more toward understanding them as crucibles of emerging
bourgeois society than analyzing them for their own sake. What light, if any,
does the Marxist theory of legal development then shed on the evolution of
legal institutions in precapitalist or preindustrial cultures? 1 would argue that
by using the general approach of historical materialism, one can anticipate
what a Marxist anthropology of law would look like. Marx and Engels argued
that each mode of production contained within itself a distinctive set of
superstructural institutions (inc1uding law), which were an integral part of
the reproduction of that mode of production. Thus, if we examine the succes­
sive epochs of human history as distinct modes of production, we should
expect to find particular forms of political and juridical systems associated
with them. Although this observation is not made explicit in the two works
that deal with precapitalist societies (The Grigin of the Family, Private Prop­
erty, and the State [Engels 1942] and Pre-Capitalist Economic Formations
[Marx 1965]), shadows of the theory are visible therein.
In the Preface to the first edition of The Grigin of the Family, Engels
(1942:5) noted that the "materialistic conception" of history posits the pro­
duction and reproduction of life's immediate essentials as the determining
factor shaping social life in any given periodo The production of food and
c1othing, dweUings, and tools constitutes one part of this, whereas the repro­
duction of human beings themselves composes the other. Thus the "stage of
development of labor on the one hand and of the family on the other"
determines "the social organization under which the people of a particular
historical epoch live" (Engels 1942:5).
According to Engels, societies characterized by low levels of labor organiza­
tion (i.e., hunters and gatherers) are able to produce nothing more than what
they require for subsistence. Wealth distinctions are unknown, for accumula­
tion of any kind is unknown. The social order of such societies is "dominated
by kinship groups" (Engels 1942:6). Engels took Morgan's (1912) description
of American Indians as a case in point: With an economy based on the sexual
division of labor and hunting technology, individuals own their means of
production and households are communaUy organized.
Blood revenge and war constitute the only means for settling conflict in these
societies. There is "no place for ruler or ruled" (Engels 1942:144). Participa­
tion in public affairs is required of aH. To modern ears, the equation of blood
38
NEWMAN, LAW AND ECONOMIC ORGANIZATION
NEWMAN, LAW AND ECONOMIC ORGANIZATION
revenge with participatory democracy is curious. Nevertheless, Engel's larger
point is that where individuals control their means of production, they also
have equal access to juridical life, such as it is. They confront public life
unmediated by sepatate, specialized institutions of law and government.
At a subsequent stage of social deve1opment, the productivity of labor
increases and "private property and exchange, differences of wealth [and] the
possibility of utilizing the labor power of others," follows. Engels (1942:6)
traced this transformation through pastoral, horticultural, and agrarian forms
of production. He connected the emergence of slavery to the increased
demands for labor wrought by these new technologies and argued that c1asses
begin to emerge as property rights to land and control over slave labor deve1op.
Hereditary military leaders arise to defend the privileges of the rich from the
demands of the poor, and their existence lays the foundation for a hereditary
nobility and monarchy (Engels 1942:150).
Amid these class-based c1eavages, the old society based on kinship dissolves
and "in its place appears a new society, with its control centered in the State"
(Enge1s 1942:6), organized on the basis of territoriality rather than blood tieso
Taxation is instituted to support a "public force" that bolsters state power.
Class antagonisms bring forth "armed men, ... prisons and coercive institu­
tions of all kinds" (Enge1s 1942:156). The state arises "in the thick of the fight
between the c1asses," but it is dominated by the economically powerful, who
cultivate political control through the exercise of state authority.
Although Engels refrained from discussing law per se within this framework,
legal institutions are clearly meant to be associated with the emergence of the
state. Equally c1ear, 1 would argue, is the thrust of his argument: Such super­
structural institutions as law that stand between the disadvantaged many and
the privileged few grow and become elaborated as a result of improvements in
the productive capacity of a society, the consequent growth in economic
surplus, and the resulting c1ass antagonisms. The state, and the legal apparatus
that supports it, is necessary to control these internal conflicts and to regulate
property and labor re1ations.
The theory of legal deve10pment sketched in this section is far less e1aborated
than Marx and Enge1s's general theory of precapitalist society. Both theories
are weakened by the poor quality of the data that formed the basis of their
original arguments. However, an approach similar to theirs will be taken up
with modern techniques and more re1iable data sources in Chapter 3.
Greenberg, David, and Nancy Anderson. 1981. Recent Marxisant books 011 law: a
reviewessay. Contemporary Crises 5:293-322.
Marx, Kar!. 1965. Pre-Capitalist Economic Formations. New York: International
Publishers.
Marx, Kar!. 1970. Capital, vo!. 1. London: Lawrence and Wishart.
Morgan, Lewis H. 1912. Ancient Society. Chicago: Charles H. Kerr and Co.
Pashukanis, Evgenii. 1978. Law and Marxism: A General Theory. London: Ink Links.
Renner, Kar!. 1949. The Institutions of Private Law and Their Social Functions.
London: Routledge & Kegan Pau!.
Sumner, Colin. 1979. Reading Ideologies: An Investigation into the Marxist Theory of
Ideology and Law. London: Academic Press.
Tucker, Robert, ed. 1972. The Marx-Engels Reader. New York: Nortan.
REFERENCE5
Althusser, Louis. 1969. For Marx. Harmondswonh, England: AlIen Lane.
Cain, Maureen, and Atan Hunt. 1979. Marx and Engels on Law. London: Academic
Press.
Engels, Friedrich. 1942. The Origin of the Family, Private Property and the State. New
York: International Publishers.
39