20 Pages Posted: 14 Jul 2014 Last revised: 19 Jan 2015

Date Written: January 18, 2015

Abstract

This essay -- the final version of one presented at 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.