ABSTRACT
Arguments against a formalistic perception of the rule of law adopted by, inter alia, Dicey and von Hayek present a formidable target for attack from a Marxist perspective. Where liberalism insists that law is neutral as between persons and classes and favours maximum liberty for all under the law, Marxism insists that law represents the interests of the powerful within society. Law is an ideological device engaged by those with power to mask the reality of that power in society, and the correlative powerlessness of the ordinary citizen. The rule of law is thus portrayed as a means of subterfuge: it is a mere pretence which hides injustice. Marxism stands in opposition to liberalism and yet, paradoxically, seeks as its end result the complete liberty of man. Law, from a Marxist perspective, is the reflection of economic power within society, a power which is used to exploit the powerless. Thus it is that, under capitalism, the worker is not rewarded with the full value of his labour: rather, he receives a price for his labour to which is added production costs and profits and together comprise the final price of a product. The laws which regulate factories and employment terms are all underpinned by the acceptance of the capitalist ideal. Laws which ameliorate the conditions of the poor do not represent – as appears at first sight – real social justice, but rather they represent a calculated means by which the poor are kept compliant within their powerlessness.16 Accordingly, the welfare state is but a cynical mask for maintenance of the status quo which defeats the movement towards revolutionary economic and social change:
Whether law serves to oppress or merely to uphold the economic status quo – and there exists dispute on this matter between Marxists themselves – law, from a Marxist perspective, does not serve the interests of all in society. The rule of law thus becomes a grand slogan under which is hidden the reality of oppression and absence of liberty. The capitalist’s insistence on the rule of law is seen as a ‘fetishism’ which must be removed along with economic oppression (Cain, 1979, Chapter 5). Only when the capitalist system breaks
down, and the law which serves it ‘withers away’, will society become truly free. When that occurs, there will be no need for law and man will achieve true freedom.
