Marxist legal theory

1. What do Marxist legal theorists believe?

a. the law serves dangerous power dynamics based on
class
b. This is complex so I'm going to define terms before I
put them together
i.
Proletariat = workers
ii.
Bourgeoisie = ruling class
iii.
Means of production = labour power,
materials, instruments, tools etc. used in production (usually
owned by the bourgeoisie)
iv.
relations of production = when the
bourgeoisie exploit the proletariat
v.
Political economy = the base of society: a
combination of the means and relations of production
vi.
Superstructure = social practices and
institutions such as education, politics, morality, religion,
culture and law
c. The superstructure (law) is shaped by the political
economy; and the political economy is legitimised and maintained
by the superstructure (law)
d. Hence: the legal rules/doctrines in capitalists societies
such as Australia reinforce the economic interests of the ruling class
i.e. ensures that wealth remains with the wealthy, and the law
primarily functions to protect the rich from the poor
i.
But the law gives the semblance of an
impartial vehicle representing everyone's interests and being
non-partisan
ii.
Marxists believe that the rule of law and
liberal notion of equality before it are myths propagated by
the wealthy to discourage investigation into them (if it was
obvious that those benefitting from the law were ruling class,
the exploited classes would not cooperate)
iii.
Law is a political tool used by some
members of society to impose their dominance over other
members of society rather than a neutral and apolitical tool
for the resolution of disputes (embraced by CLS)
iv.
e.g. dispossession for economic benefit
1. villages destroyed because
it was more economical to run sheep these actions
were supported legislatively through enclosure acts
which allowed land owners to consolidate land for
other activities - Leiboff and THomas Article
2. "Law is not special - it is not some separate set of principles
that can be deduced from looking at nature, or applying reason,
which is the claim made by conventional legal theory. [] law is
not 'apart' from other forces in society. Marx claims that law
instead maintains and facilitates the economic interests of the
system in which it functions." - Leiboff and Thomas, 336

What

does

this

quote

mean?

Do

you

agree?

Reflects the Marxist view that law is reliant on other

forces ie economic forces within the superstructure
laws do not have consistency when reliant on such
forces ie benefiting those who are wealthier tenant farmers

could be tossed off their land at the whim of landowners ;

Leiboff

and

THomas

Article

even if they did believe they were free , their freedom was
illusory (Marx) ; laws enabled inequality and hardship to be
experienced ( ie lack of liability for employers) to allow the
wealthier
to
maximise
their
profits
Given the context of Marx, it can be understandable
however at present though the law may facilitate exploitation there
are measures to ensure liability and more fairness for those who are
less well off i.e Duty of Care, Working Condition Standards ( WH&S),
wages; however there are still issues within the system that does
not ensure fairness for all.

3. "the disparity between white and blue-collar criminals has

never been larger. If I defraud my neighbour of $10,000, I'll be
charged, prosecuted and sent to jail for years. In contrast, a
banking executive who robs borrowers and loots or destroys
untold billions of dollars is praised by politicians, business
groups, the mass media and the economics profession for 'wealth
creation' " - Soos
Do you agree with Soos' assessment of how white collar crime is
dealt with in the Australian legal system. Is Marxist legal theory
irrelevant today? Consider the Denniss and Douglas et al articles,
as well as the Ansett airline example in Leibof and Thomas
Denniss Article: about how big companies break laws
and just pay fines as punishment and continue to ignore the laws ie
Rio Tinto determined to drill into local areas endangering the way
of life of local communities for purpose of increasing their profit
Ansett article: After airline went bust, employees were
not paid the entitled fees ie redundancy and separation payments
as they were not seen to be interests in the company under the law;
The government levied a tax on airline travelers to cover fees
however there was no guarantee that the employees would actually
get the money reflected how law will facilitate interest of those
with capital rather than those who earn a wage
The punishments for white collar crimes often are less
severe than blue collar crimes despite negative impacts being felt
throughout society. There are cases of embezzlement, where
people's life savings are taken and never returned and yet the
criminals are not punished as severely.

 Certain aspects of Marxist legal theory still do resonate

today as seen with the Denniss and Ansett articles. External views
may show that the law may not be separated from wider or social
issues.
4. "The richest 85 people on the globe - who between them
could squeeze onto a single double-decker bus - control as much
wealth as the poorest half of the global population put together
(3.5 billion people)." - Oxfam, 2014
"In 2010, an estimated 2.2 million people (in Australia) were living
below the poverty line after taking housing costs into account. It
was also estimated that 575,000 children (1 child in 6) were living
in poverty." - The Australia Institute, 2014
In what ways do you think procedural laws can change to help
with discrepancies in how rich and poor are treated today? In
what ways do you think substantive laws can change to help with
discrepancies in how rich and poor are treated today?

Feminist legal theory

5. What do feminist legal theorists believe?
a. the law serves dangerous power dynamics based on
gender
i.
women are hence subordinated through
the law, which is not neutral or impartial, but systematically
reflects/maintains/legitimises the patriarchy, perpetuating
male values and interests
6. What are the different strands of feminist legal theory.
Distinguish between the following:
a. Liberal feminism = sameness
i.
in reaction to
1. legal subjectivity: i.e. the
different treatment of women by the law (in regards to
things like franchise, property rights, educational and
employment opportunities etc.)
2. how men are the assumed
subject of the law: benefits practices viewed as
formally neutral but of a male norm (i.e. indirect
discrimination: women are subjected to male
standards)
ii.
assumes that women are similar to men
in their ability to operate in the public world -> hence there
should be equal opportunity exemplified in:
1. the absence of legal barriers
to advancement
2. equal rights for women
within the established framework of society
iii.
Thus individuals should be assessed on
their individual merits: not that of the group
iv.
their goals encapsulated in the Sex
Discrimination Act 1975 (UK) and Sex Discrimination Act
1984 (Cth)

v.

Problems:
1. there is difficulty in showing
why discrimination on the ground of characteristics
unique to women (e.g. pregnancy) should be seen as a
form of sex-based discrimination
a. men cannot
become pregnant - women discriminated against
on the bound of pregnancy cant argue that they
have been treated differently because there is
no comparison
2. inequalities of prestige,
wealth and power seem to have little to do with sexbased discrimination in the public world*
a. despite
increased legal, education and economic rights,
women continue to have lower paying, less
influential/important/secure occupations.
Women suffer from more poverty,
unemployment and violence than men
b. *some feminists
argue that what occurs in the private world is
more influential - domestic responsibilities
b. Radical feminism
i.
focusses on dominance and power, not
diference
1. oppression on the basis of
sex is the most fundamental kind of oppression, and
the sexual abuse of women is the mechanism by which
women are subjugated - MacKinnon
2. hence power and sexality
central to this approach
3. sex equality can only be
achieved when male power over women is eliminated
4. rejects the
sameness/difference models both have men as the
standard against which women are judged - MacKinnon
wants feminism unmodified (unaffected by anything
except the subordination of women to men)
a. gender
difference is the velvet glove on the iron fist of
domination (MacKinnon) i.e. femininity is
defined by male power to ensure continued
male power - what a woman is is what [men]
have made women to be
b. this is
perpetuated by objectification (porn, domestic
violence, prostitution, rape etc.)
ii.
Problems

1. MacKinnons view of women

depicts them as incapable of anything but helpless,
silenced victimhood whose sexuality is entirely defined
in terms of male power
c. Cultural feminism = difference
i.
focusses on and embraces womens
differences from men
1. hence against the idea of
assimilating women into a patriarchal system (and
thereby forcing women to act like men)
ii.
psychologist Carol Gilligan: women see
themselves as connected with others, whereas men see
themselves as separate. This leads men and women to
reason in a different way. In moral dilemmas, woman are
more concerned about
relationships/needs/responsibilities/context (care), whereas
men are concerned about abstract, rigid rules and
adversarial/individualistic concepts such as rights (justice)
1. the law reflects male values
of justice and not female relational values
2. thus we need to flood the
market with our own stories until we get one simple
point across: mens narrative story and
phenomenological description of law is not womens
story and phenomenology of law - Robin West
iii.
A more radical approach from Luce
Irigaray: there should be a separate law for men and women a law of persons appropriate to their natural reality, that is,
to their sexed identity
iv.
Problems:
1. its picture of a separate
female identity is close to the stereotyped views which
have been used to discriminate against women in the
first place
2. the relational aspect (care
ethic) may just be a result of male domination - see
John Stuart Mill quote starting bottom of page 293
a. women value
care because men have valued us according to
the care we give them - MacKinnon
3. argues for special
treatment of women as a way of accommodating their
particular needs - positive discrimination: maintaining
that equality for minority/vulnerable groups may
require different (not identical) treatment
Which of these feminist theories, if any, do you think have merit?
Can you name any other strands of feminist legal theory? Do you
identify with any of these stances?

 other strands:
postmodern feminism
there is no
objective/universal standard of truth and justice
discoverable by human reason
promotes binary oppositions
such as male/female and reason/emotion to show how
one is privileged and the other suppressed, and then
make space for the previously excluded/marginalised
views
emphasises differences
AMONG women - criticises Essentialism (assumption
that all women share common interests/experiences of
oppression despite their differences)
-> theories
stress the disadvantage suffered by those who
are subject to more than one system of
disadvantage - intersectionality
postmodern feminism tells
us to beware of searching for a new truth to replace
the old...there is no such thing as the womans point of
view. There is no single theory of equality that will
work for the benefit of all women. indeed there is
probably no single character or goal that is in the best
interest of all women - Patricia Cain
problems
they critique
feminism so how can they offer feminist
jurisprudence?
7. "Feminism isnt about making women stronger. Women are
already strong. Its about changing the way the world perceives
that strength" - GD Anderson.
Do you agree with this sentiment? What strand of feminist theory
would endorse this idea?
(Not really sure if this fits but) Thornton article: postmodernism rejects

subordination and victimhood as fixed characteristics of womens

identity. A fluid approach is favoured which seeks to account of
difference and privilege, as well as resistance and individual agency
..as a result of being influenced by( variety) ..legal theorists, the
woman of legal discourse became more diverse.
8. The Thornton article refers to feminist law reform
addressing anachronistic law such as 'loss of consortium' and
'sexually transmitted debt'. What are these?
loss of consortium: the inability of one's spouse to have normal marital relations ie sexual
relations

sexually transmitted debt: is when you become liable for your partner's debt as a result of your
marital and/or de-facto relationship, rather than a conscious knowledge or acceptance of the debt. ( more
informal definition)

9. "in some cases they had to speak to police at the counter

and go into intimate details against violenceone Warrnambool
woman said there had been six people in a line behind her and
two of them knew her ex." - Amanda George in the McComish
article
Is the work of feminist legal theory over? In what ways do you
think procedural laws can change to help women today? In what
ways do you think substantive laws can change to help women
today?
no
The more patriarchal communities are,
the more likely there is to be domestic violence because
domestic violence is a result of the patriarchal structures and
the power imbalances of womens inequality - Pat Mclaren.
This is why there is more domestic violence in rural
communities: they are more conservative and patriarchal
Procedural changes
specialised family violence court: handles
cases with female applicants and male respondents
off-site remote witness rooms - reduce
safety issues with women encountering their former partners
before court hearings
police need to show greater
care/sensitivital awareness taking reports from survivors
more affordable/accessible emergency
housing
Substantive changes
positive discrimination / equalising of the
indirect discrimination problem
anti-objectification (re commercial,
pornographic, prostitution etc)
domestic violence guff

Bringing it together
10.
How do issues of class and gender intersect? Is there a
connection that law makers and lawyers need to consider?
a. both believe that
i.
the law is not neutral or impartial (as it
claims to be)
ii.
but rather favours the traditionally more
powerful parties: whether that be the bourgeoisie or the
patriarchy - they hold a monopoly over the law which keeps
poverty and inequality entrenched
Thorton writes that justice and equity, and the values
underpnning feminism would seem to be playing a secondary role
to property and profits mirroring the concerns of Marx?

 Take into concerns of the community before economic

benefit ?
11.
You have considered ways that procedural and
substantive laws can improve to help people in relation to gender
and class. Do you think there are extra-legal (i.e outside of the
law) impediments stopping these changes from being
implemented?