Marxism and Law
An active discussion both within and outside the Marxist circles deals with the subject involving the role played by law in the class struggle and conflict. This debate is not only a theoretical and academic one, but also depicts the differences in the political arena between the “traditional” Marxist-Leninists, spearheaded by the theory of Karl Marx and Fredrick Engels, and the “dissident New Left”, led by E. P Thompson and others.
This paper attempts to explore the teachings of Marxism on the question of state and law, while paying special emphasis to the presence of pro-labour industrial legislation. The paper proposes that the law is a manifestation of struggle between different classes in the society at a particular point in time. The author demonstrates that law sides with the interests of the dominant classes but also takes into account the strength of the oppressed ones. In this way, the outcomes of the battles of class wars fought in the political and social arena are declared in the forms of legal change.
This paper begins with the exposition of the general theory of law and state in Marxism, as presented by Marx and Engels, and its response to the critique of E. P. Thompson while dealing with the question of pro-labour legislation. It concludes with application of Marxist theory of law on the industrial dispute legislation, industrial strike in particular, in Pakistan. The choice of industrial dispute law in particular has been made because industrial disputes are the most prevalent expression of the conflict between the bourgeoisie and the proletariat. In a society ridden with class-conflict, industrial dispute law is highly prone to revision in case of a relative change in the strength of class having a stake in it.
Marxism and Law
Law, according to Marxism, is concretization of the common rules that emerged to ensure subordination of individuals to the “daily recurring acts of production, distribution, and exchange of products.” In other words, “legislation, whether political or civil, never does more than proclaim, express in words, the will of economic relations.” With the economic relations manifested in the form of law, the first appearance of potent dissent necessitates the formation of a body that can ensure the adherence of law by members of the society. This necessity gives birth to the state, the public authority entrusted with the job of maintenance of law. State– organized on territorial basis and consisting of special detachments of armed men equipped with coercive institutions and placed above society– is required to deal with the dissident social elements, which disagree to submit to the legal code. In order to understand the legal theory of Marxism, it is essential to understand the economic relations prevailing in the present age.
According to Marxism, the modern society, “the epoch of the bourgeoisie,” is marked by split of society into two great hostile classes– bourgeoisie and the proletariat– with diametrically opposite interests. With the decay of feudalism, and division of society into new classes, the bourgeoisie attains a more privileged position as compared to that of the rest of the classes. This privileged position is acquired at the cost of formation, enlargement, and exploitation of a new class, the proletariat, which being an enemy of the bourgeois class is also an “essential condition for [its] existence”. Therefore, the bourgeoisie employs all available instruments to maintain its place as well as the arrangement, the means of production and productive relations, which allowed it to climb to the upper stratum of the society. In doing so, the bourgeois class also occupies an advantaged status in legal sphere, and able to call the state, the guardian of law, at its service and become “the politically dominant class and thus acquires new means of holding down and exploiting the oppressed class.” In this way Marxism holds that “all legislation is calculated to protect those that possess property against those who do not”.
The Marxist stand that law is an expression of class relations in the society, has been criticized by E. P. Thompson who presents that the class relations are expressed through law, which can further mediate prevailing class relations to the advantage of both the ruling class and the ruled:
“[i]t is true that that the law did mediate existent class relations to the advantage of the rulers; not only is this so, but as the century advanced the law became a superb instrument by which these rulers were able to impose new definitions of property to their even greater advantage… on the other hand, the law mediated these class relations through legal forms, which imposed, again and again, inhibitions upon the actions of rulers.”
In the conception of Thompson, the protective labour laws that emerged in Great Britain all through the 19th century regulating such conditions of employment as hours of work, breaks for rest, weekly rest, safety, employment of children and women, compensation against injuries, and protection of wages, etc., were a product of the mediation of law in the favor of the working class against the ruling class. In this sense, the law transcends the class disparities to follow the path of its independent evolution.
Marxism has a very distinct stand on pro-labour legislation. Marx characterized such legislation as a product of the “guerilla warfare” against the “encroachments of capital”. Marx rejects the independent mediatory role of law in introduction of any pro-labour legislation. According to him, in absence of any pressure from without, the ruling class does not even advance minimal welfare measures:
“It was not the wisdom of the ruling classes, but the heroic resistance to their criminal folly by the working classes of England that saved the West of Europe from plunging headlong into an infamous crusade for the perpetuation of and propagation of slavery on the other side of the Atlantic”.
Therefore, Marx explains law in general, and industrial law in particular, as the product of relative strengths of the various class forces in the society at a particular point in time. This principle can be employed to establish that the pro-labour laws were a result of the class struggle waged between the workers and the capitalists where the former as a class were able to show enough strength to force the latter to approve of its demands. For example, the study of the struggle surrounding the enactment of shortening of labour hours forced Marx to state that the “establishment of a normal working day is there fore a product of a protracted and more or less concealed civil war between the capitalist class and the working class.”
If law is a product of the class antagonisms in the society, then law, in a bourgeois society, can incline towards either bourgeoisie or the proletariat corresponding with their relative class strengths. Law can progress and regress depending on the increase or decrease of the power of the working class in relation with the power of the capitalist class. For example, if the Ten Hour Act of 1847 in England was a product of immense social and political struggle waged by the workers, the subsequent amendment in 1850 was a result of the victory of the protest of capital against the aforesaid bill. Similarly, curtailment of the rights of Trade Unions by the government of Margaret Thatcher in England in the decade of 1980s is also an expression of regress shown by law in siding with the interests of the capital.
Trade Dispute Legislation in Pakistan
The labour movement in Pakistan, for various reasons, has been facing a general decline after reaching its prime in the early 1970’s. Such descend and the relative ascend of the capitalist forces, resulted in emergence of a number of anti-labour laws, the obvious one being the replacement of the 8 hour working day with the old 12 hour one. In the same way, in the field of industrial relations, the movement of laws also takes sides with the capitalists against the workingmen.
Strike is one of the most important elements of dispute for it is main weapon of the trade union against the industrial employer. It is because of the threat of strike that a Collective Bargaining Agent can hope to cogently negotiate with the industrial employer. The primary purpose behind strike is to pressurize the employer to conform to certain demands relating to terms and conditions of employment.
The process of going on strike in Pakistan has been loaded with rules and procedures including lengthy negotiation, conciliation, and optional arbitration that may take weeks before the strike is launched. According to an introduction in industrial dispute legislation in 2002, the Collective Bargaining Authority has to provide a notice of seven days, following exhaustion of alternative measures, before going to strike. Within this period of seven days, the employer can raise the issue in the court of law making the right to strike impotent and toothless.
In addition to that, a clever distinction has been made between the interests of the workers and “the interests of the community at a large” in the Industrial Relations Ordinance 2002 meaning that the interests of community at large are separate and distinct from interests of workers, which constitute a significant percentage of population. Based on this distinction, the state has the power to prohibit any strike. Previously, only the courts had the power to stop the strike after 30 days of its commencement.
While making it incredibly difficult to go on strike, the Industrial Relations Ordinance 2002, all penalties of imprisonment for unfair labour practices, the usual reason behind the emergence of industrial disputes, have been substituted with monetary fine. This change is a further contribution towards the benefit of the capital-owning class and detriment to the proletariat.
A trade dispute is the first major expression of differences arising between the capitalists and the workers within the confines of a factory. Both capitalist and the worker try to hold control of law and employ it in pursuit of their divergent and antagonistic interests. Analysis of one of the most important elements of the trade dispute, the law governing industrial strike by workers, and the changes that have been brought to it over a stretch of time, exposes the anti-labour direction in which the industrial law is moving in Pakistan.
The exposition that law exists independent of the society and follows a distinct path of evolution is defeated by Marxism. The occurrence of regressions in law corresponding with the balance of class forces demolishes the notion of inherent equity of law.
This representation of the oscillation of law also affirms the presence of class conflict in the society and irreconcilable character of the interests of the bourgeois and the proletariat. After coming out from its meta-physical fortress, law assumes another role in the society. Law becomes the cease-fire agreement of battles in the class war. Furthermore, it may be regarded as a device to gauge of the strengths of the various class forces in the society.
 Karl Marx and Fredrick Engels: Selected Works, Volume 2, 365(1969).
 Marx, Poverty of Philosophy, 72(1966).
 Supra no. 1, at 365.
 Fredrick Engels, Origin of the Family, Private Property and the State, 206 (1978).
 Karl Marx and Fredrick Engels, Manifesto of the Communist Party, 31 (1970).
 Ibid, at 46.
 Supra no. 4, at 208.
 Marx and Engels, On Britain, 316 (1953).
 E. P. Thompson, Whigs and Tories, 909 (1975).
 P. R. N. Sinha, Industrial Relations, Trade Unions and Labour Legislation, 12 (2004).
 Supra no. 1, at 75.
 Ibid., at 18.
 Karl Marx, Das Capital, p. 905.
 Supra no. 10, at 55.
 Ibid., at 164.
 “Provided further that the federal government or a provincial government, as the case may be, shall prohibit by an order in the official Gazette, the commencement of strike or lockout, as the case may be if the same in the opinion of the Government concern, is detrimental to the interest of the community at large.” See Industrial Relations Ordinance (2002), § 31(3).
 The number of days has been reduced to 15. See Industrial Relations Ordinance (2002), § 32(2); as well as Industrial Relations Ordinance (2002), § 31(3).
 Industrial Relations Ordinance (2002), § 65.